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Born of the arid west, the University of Denver Water Law Review fosters discussion and promotes rigorous scholarship on water law and policy.

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ABOUT US

The University of Denver Water Law Review is an internationally circulated, semi-annual publication that serves as a high-quality forum for the exchange of ideas, information, and legal policy analysis concerning water law.

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Born of the arid west, the University of Denver Water Law Review fosters discussion and promotes rigorous scholarship on water law and policy.

LEARN MORE ABOUT US

2024 Symposium


The 2024 Symposium, Water as a Nexus: Agriculture and Efficiency in the West, will be held on Friday, April 19th.


Registration is now open. Free for students!


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– Seeking Submissions –

The University of Denver Water Law Review is seeking submissions for publication in its upcoming volumes. The Review is an internationally circulated, semi-annual publication that serves as a high-quality forum for the exchange of ideas, information, and legal and policy analyses concerning water law. We welcome submissions from practitioners, professors, judges, students, and all other water law professionals and scholars. The Review prints articles focused on water rights and water rights systems, water conservation and sustainability matters, water planning and development, water equity, and other water-related matters. Manuscripts (as well as any questions) may be submitted by email to wlr@law.du.edu. Publication offers are made on a rolling basis. Thanks for your interest in the Water Law Review. We look forward to reading your submissions!


Recent Blog Posts

By Abigail Frische 08 Mar, 2024
A (Limited) Win for the Environment and Those of Us Living in It 
By Kristen Kennedy 01 Mar, 2024
Colorado Efforts to Protect Water Resources
By Elizabeth Shackelford 03 Nov, 2023
California has a storied and complex history of water rights evolution that has resulted in over a century’s reliance on a successful water rights permitting system. However, as a megadrought strains water resources across the southwest, the State Water Board is pushing back on California’s longstanding water rights scheme in favor of a more innovative approach: a voluntary water rights sharing agreement program. California joined the Union as the thirty-first state on September 9, 1850. After gaining its statehood, California embraced the water rights system of the Eastern United States, based on English common law, and adopted the riparian rights system . Under the riparian rights system, water rights stem from ownership of land that borders a water source. The riparian property owner possesses the right to use that water. This right runs with the land and will remain valid even if it is never exercised. However, the pure riparian system would not last in California. After prospectors discovered gold in 1848, California was flooded with ambitious miners hoping to find fortune in gold, as well as others hoping to find the same in providing services and goods to those gold rush miners. After the miners came the farmers, bringing great agricultural interest to the state of California. Riparian rights proved to be problematic for these two groups. Riparian rights are land based, and at this time most of the land in California was held by the federal government, with very little private land ownership. Therefore, early miners and farmers had very little opportunity to gain water rights . Additionally, riparian rights only attach to natural flow. This principle only allows water to be taken from the flow of the river as it naturally runs. This means water cannot be stored during wet years and seasons for release and use in dry years and seasons. Because of this, the system was wholly impractical for these two groups to store any large amounts of water to rely on as reserves for their operations. Consequently, these early miners and farmers were unable to rely solely on the riparian rights system to meet their needs. As a result of this struggle, in 1855 the California Supreme Court decided Irwin v. Phillips , recognizing another kind of water right: the appropriative water right. Appropriative water rights are based on the doctrine of prior appropriation. Much to the relief of newly settled miners and farmers, water rights in the prior appropriation system are not based on owning land. The doctrine of prior appropriation rewards those who are able to put the water to beneficial use and create the most social value from the water. Under the doctrine of prior appropriation, water is allocated based on priority. The phrase used to describe this principle is “first in time, first in right.” In general, the first person to put the water to beneficial use first has priority and is considered the senior user. The senior user is able to use the amount of water they need before the junior user is able to access the water. If appropriative rights are not used, the holder loses them. Appropriative rights may be taken from the source and stored anywhere to be used later, making them the ideal right for the western, arid California. Despite developing a water rights system that better fit California’s needs, the state opted to keep its system of riparian rights alongside the newly minted appropriative rights system. In 1872, California enshrined the principle of riparian rights in its state constitution. In the beginning of the twentieth century California was still relying on common law as its system to allocate water. There was no state government agency monitoring these water rights issues. California concluded that it needed a more efficient system for allocation. As a result, California passed the Water Commission Act of 1913 (“Act”). The Act created both a water right permitting system and the predecessor agency to what is the modern-day State Water Resources Control Board. The State Water Resources Control Board is the current authority charged with issuing water rights permits. In recent years, the growing population and changing weather patterns have put a strain on California's water supply, unlike any seen during the inception of California’s water rights permitting system. As of July 2022, more than thirty-two percent of land in the Western States was classified as experiencing extreme drought, with California listed as one of the states experiencing the most severe conditions, such as rapid depletion of reservoirs, explosive wildfires, and even major declines in bird populations. In fact, the past two decades have been the driest in a 1,200-year period for California. By studying thousands of tree rings, scientists are able to measure historical moisture patterns and have concluded that the Western United States is experiencing a “megadrought,” something unseen since 800 A.D. As a result of this climate crisis, debates are beginning to erupt regarding the best way to amend California’s century-old water rights system to best fit life in the modern era. In 2022, California Senate Democrats introduced a $7.5 billion-dollar proposal for a “climate resilient water system.” This system would entail purchasing lands with senior water rights from holders willing to sell. After acquiring these lands, the plan would “retire water use incrementally from multiple water uses in a basin and across wide geographies.” Proponents of the plan claim this will help achieve the desired goal of providing clean drinking water and improving conditions of wildlife refuges and fish habitats. However, this proposal poses significant legal risks that may harm some senior rights holders and leave California State vulnerable to litigation. Water rights are a property interest. By attempting to regulate senior water rights, California State might have had to defend against takings claims. Instead of taking a risky regulatory approach, the State Water Board is testing something novel: a voluntary water rights sharing agreement program. Water rights holders in the Upper Russian River watershed in Mendocino and Sonoma Counties are piloting this program. Anticipation of a water supply shortage following the unrelenting drought conditions of the last year was the spark needed to drive innovation in the method of allocating water. The water rights holders of these counties began to meet once a week in hopes of striking a new agreement to avoid possible curtailments. The Upper Russian River program was formed as a result of these meetings. Eligible to all water rights holders by enrollment, the program provides for a twenty to thirty percent reduction of water use by senior rights holders. In addition to senior rights holders, cities of the region have also begun enforcing water conservation. The water savings resulting from this use reduction are shared with junior rights holders, whose use would otherwise have been curtailed. For rights holders not enrolled in the program, there is an emergency curtailment regulation in place. These backstop curtailments will become effective based on seniority. In effect, the trickle-down results of the program serve to prevent the previous all or nothing result of the appropriative water rights system. While the Upper Russian program is green and remains unchallenged, there is promising precedent that could provide solid legal footing for programs that deviate from their state water rights scheme. In a fight over groundwater rights in Diamond Valley, Nevada, the state Supreme Court held that its state engineer could deviate from Nevada’s seniority-based water law scheme. The Nevada Supreme Court’s decision authorized the controversial Diamond Valley groundwater plan to continue. Unlike the Upper Russian program, the Diamond Valley groundwater plan required all rights holders to reduce their use, rather than relying solely on volunteers. With this strict distinction came significant discussion by the dissent in the case regarding the constitutional implications of this decision and whether the government must pay just compensation to senior water rights holders for the plan’s effects on their rights. Only time will tell if the strict approach of the Diamond Valley plan will be upheld as the mainstay precedent for innovative programs such as these; or perhaps the voluntary nature of the Upper Russian program will offer the best compromise. However, the cooperative nature of the Upper Russian program places it as the most likely candidate for success. By being voluntary, the Upper Russian program is more likely to be praised as a win for its flexibility and promotion of innovation in times of crisis, and it is less vulnerable to criticism labeling it as over regulatory or burdensome. For these reasons, the Upper Russian program model could be applied in Colorado, as it has strong potential to establish itself as the foundation for novel voluntary water rights sharing programs across the West. Sources California State Library Multimedia, Water and Drought in California: A Legal Primer , Youtube (Nov. 9, 2022), https://www.youtube.com/watch?v=rVti_wb6RaA . Daniel Rothberg, Justices uphold groundwater plan in ruling that could 'significantly affect water management,’ The Nevada Independent (June 22, 2022), https://thenevadaindependent.com/article/justices-uphold-groundwater-plan-in-ruling-that-could-significantly-affect-water-managementefbfbc . Ian James, Western megadrought is worst in 1,200 years, intensified by climate change, study finds , Los Angeles Times (Feb. 14, 2022), https://www.latimes.com/environment/story/2022-02-14/western-megadrought-driest-in-1200-years . Paul Rogers, Current drought is worst in 1,200 years in California and the American West, new study shows , The Mercury News (Feb. 14, 2022), https://www.mercurynews.com/2022/02/14/current-drought-is-worst-in-1200-years-in-california-and-the-american-west-new-study-shows/ . Stephanie Elam, Property owners and officials find ways around century-old laws as the West runs out of water , CNN (July 10, 2022), https://www.cnn.com/2022/07/10/us/west-water-crisis-property-rights-climate/index.html . Water Law in California , Water Education Foundation (last updated 2020), https://www.watereducation.org/aquapedia/water-rights-california#:~:text=California's%20growth%20has%20closely%20paralleled,of%20land%20bordering%20a%20waterway .
Show More

Recent Post

By Abigail Frische 08 Mar, 2024
A (Limited) Win for the Environment and Those of Us Living in It 
By Kristen Kennedy 01 Mar, 2024
Colorado Efforts to Protect Water Resources
By Elizabeth Shackelford 03 Nov, 2023
California has a storied and complex history of water rights evolution that has resulted in over a century’s reliance on a successful water rights permitting system. However, as a megadrought strains water resources across the southwest, the State Water Board is pushing back on California’s longstanding water rights scheme in favor of a more innovative approach: a voluntary water rights sharing agreement program. California joined the Union as the thirty-first state on September 9, 1850. After gaining its statehood, California embraced the water rights system of the Eastern United States, based on English common law, and adopted the riparian rights system . Under the riparian rights system, water rights stem from ownership of land that borders a water source. The riparian property owner possesses the right to use that water. This right runs with the land and will remain valid even if it is never exercised. However, the pure riparian system would not last in California. After prospectors discovered gold in 1848, California was flooded with ambitious miners hoping to find fortune in gold, as well as others hoping to find the same in providing services and goods to those gold rush miners. After the miners came the farmers, bringing great agricultural interest to the state of California. Riparian rights proved to be problematic for these two groups. Riparian rights are land based, and at this time most of the land in California was held by the federal government, with very little private land ownership. Therefore, early miners and farmers had very little opportunity to gain water rights . Additionally, riparian rights only attach to natural flow. This principle only allows water to be taken from the flow of the river as it naturally runs. This means water cannot be stored during wet years and seasons for release and use in dry years and seasons. Because of this, the system was wholly impractical for these two groups to store any large amounts of water to rely on as reserves for their operations. Consequently, these early miners and farmers were unable to rely solely on the riparian rights system to meet their needs. As a result of this struggle, in 1855 the California Supreme Court decided Irwin v. Phillips , recognizing another kind of water right: the appropriative water right. Appropriative water rights are based on the doctrine of prior appropriation. Much to the relief of newly settled miners and farmers, water rights in the prior appropriation system are not based on owning land. The doctrine of prior appropriation rewards those who are able to put the water to beneficial use and create the most social value from the water. Under the doctrine of prior appropriation, water is allocated based on priority. The phrase used to describe this principle is “first in time, first in right.” In general, the first person to put the water to beneficial use first has priority and is considered the senior user. The senior user is able to use the amount of water they need before the junior user is able to access the water. If appropriative rights are not used, the holder loses them. Appropriative rights may be taken from the source and stored anywhere to be used later, making them the ideal right for the western, arid California. Despite developing a water rights system that better fit California’s needs, the state opted to keep its system of riparian rights alongside the newly minted appropriative rights system. In 1872, California enshrined the principle of riparian rights in its state constitution. In the beginning of the twentieth century California was still relying on common law as its system to allocate water. There was no state government agency monitoring these water rights issues. California concluded that it needed a more efficient system for allocation. As a result, California passed the Water Commission Act of 1913 (“Act”). The Act created both a water right permitting system and the predecessor agency to what is the modern-day State Water Resources Control Board. The State Water Resources Control Board is the current authority charged with issuing water rights permits. In recent years, the growing population and changing weather patterns have put a strain on California's water supply, unlike any seen during the inception of California’s water rights permitting system. As of July 2022, more than thirty-two percent of land in the Western States was classified as experiencing extreme drought, with California listed as one of the states experiencing the most severe conditions, such as rapid depletion of reservoirs, explosive wildfires, and even major declines in bird populations. In fact, the past two decades have been the driest in a 1,200-year period for California. By studying thousands of tree rings, scientists are able to measure historical moisture patterns and have concluded that the Western United States is experiencing a “megadrought,” something unseen since 800 A.D. As a result of this climate crisis, debates are beginning to erupt regarding the best way to amend California’s century-old water rights system to best fit life in the modern era. In 2022, California Senate Democrats introduced a $7.5 billion-dollar proposal for a “climate resilient water system.” This system would entail purchasing lands with senior water rights from holders willing to sell. After acquiring these lands, the plan would “retire water use incrementally from multiple water uses in a basin and across wide geographies.” Proponents of the plan claim this will help achieve the desired goal of providing clean drinking water and improving conditions of wildlife refuges and fish habitats. However, this proposal poses significant legal risks that may harm some senior rights holders and leave California State vulnerable to litigation. Water rights are a property interest. By attempting to regulate senior water rights, California State might have had to defend against takings claims. Instead of taking a risky regulatory approach, the State Water Board is testing something novel: a voluntary water rights sharing agreement program. Water rights holders in the Upper Russian River watershed in Mendocino and Sonoma Counties are piloting this program. Anticipation of a water supply shortage following the unrelenting drought conditions of the last year was the spark needed to drive innovation in the method of allocating water. The water rights holders of these counties began to meet once a week in hopes of striking a new agreement to avoid possible curtailments. The Upper Russian River program was formed as a result of these meetings. Eligible to all water rights holders by enrollment, the program provides for a twenty to thirty percent reduction of water use by senior rights holders. In addition to senior rights holders, cities of the region have also begun enforcing water conservation. The water savings resulting from this use reduction are shared with junior rights holders, whose use would otherwise have been curtailed. For rights holders not enrolled in the program, there is an emergency curtailment regulation in place. These backstop curtailments will become effective based on seniority. In effect, the trickle-down results of the program serve to prevent the previous all or nothing result of the appropriative water rights system. While the Upper Russian program is green and remains unchallenged, there is promising precedent that could provide solid legal footing for programs that deviate from their state water rights scheme. In a fight over groundwater rights in Diamond Valley, Nevada, the state Supreme Court held that its state engineer could deviate from Nevada’s seniority-based water law scheme. The Nevada Supreme Court’s decision authorized the controversial Diamond Valley groundwater plan to continue. Unlike the Upper Russian program, the Diamond Valley groundwater plan required all rights holders to reduce their use, rather than relying solely on volunteers. With this strict distinction came significant discussion by the dissent in the case regarding the constitutional implications of this decision and whether the government must pay just compensation to senior water rights holders for the plan’s effects on their rights. Only time will tell if the strict approach of the Diamond Valley plan will be upheld as the mainstay precedent for innovative programs such as these; or perhaps the voluntary nature of the Upper Russian program will offer the best compromise. However, the cooperative nature of the Upper Russian program places it as the most likely candidate for success. By being voluntary, the Upper Russian program is more likely to be praised as a win for its flexibility and promotion of innovation in times of crisis, and it is less vulnerable to criticism labeling it as over regulatory or burdensome. For these reasons, the Upper Russian program model could be applied in Colorado, as it has strong potential to establish itself as the foundation for novel voluntary water rights sharing programs across the West. Sources California State Library Multimedia, Water and Drought in California: A Legal Primer , Youtube (Nov. 9, 2022), https://www.youtube.com/watch?v=rVti_wb6RaA . Daniel Rothberg, Justices uphold groundwater plan in ruling that could 'significantly affect water management,’ The Nevada Independent (June 22, 2022), https://thenevadaindependent.com/article/justices-uphold-groundwater-plan-in-ruling-that-could-significantly-affect-water-managementefbfbc . Ian James, Western megadrought is worst in 1,200 years, intensified by climate change, study finds , Los Angeles Times (Feb. 14, 2022), https://www.latimes.com/environment/story/2022-02-14/western-megadrought-driest-in-1200-years . Paul Rogers, Current drought is worst in 1,200 years in California and the American West, new study shows , The Mercury News (Feb. 14, 2022), https://www.mercurynews.com/2022/02/14/current-drought-is-worst-in-1200-years-in-california-and-the-american-west-new-study-shows/ . Stephanie Elam, Property owners and officials find ways around century-old laws as the West runs out of water , CNN (July 10, 2022), https://www.cnn.com/2022/07/10/us/west-water-crisis-property-rights-climate/index.html . Water Law in California , Water Education Foundation (last updated 2020), https://www.watereducation.org/aquapedia/water-rights-california#:~:text=California's%20growth%20has%20closely%20paralleled,of%20land%20bordering%20a%20waterway .
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