Forthcoming Posts

Spring Issue

The Water Law Review is excited to be publishing the following scholarly articles in Volume 18, Issue 2 this spring.

Prior Appropriation: A Reassessment

This Article takes a comprehensive look at the basic law governing the uses of water in the seventeen western states. It begins with a review of the literature both supporting and critiquing the prior appropriation doctrine. It turns to a recapitulation of the common law development of the doctrine, beginning in California and extending to Nevada, Montana, and Colorado. It summarizes the codification of these principles in statute and the emergence of systems of state supervision to manage the establishment of new water rights and to administer uses according to their priorities—a process largely completed in the early 1900s. It discusses the uneven development of laws, including prior appropriation, to govern uses of groundwater and the emergence of new mechanisms enabling protection of streamflows for environmental and recreational purposes. The Article then turns to an assessment of key elements of western water law today: the continuing role of priority, the legal significance of public ownership, the constitutionally protected property in a prior appropriation water right, the concept of beneficial use, the use of conditional water rights, changes of use, forfeiture and abandonment, instream flow protection, and adjudication. In each case, the Article offers proposals for changes that would, in the author’s view, bring the law more closely into alignment with today’s needs and interests.

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Conditional Water Rights and the Problem of Speculation

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Why Prior Appropriation Needs Equity

Equity has at least three meanings in water rights discussions. Equitable apportionment applies in interstate water disputes. Equitable justice incorporates environmental justice concerns. Equitable remedies imply injunctions, maxims, and conscience, among others. These meanings are implicit in water rights discussions of the prior appropriation doctrine, which applies in nine western states.

Focusing on three foundational and more recent prior appropriation cases from three western states, Mr. Rudolph rejects commentators’ claims that prior appropriation and traditional equitable remedies are moribund. Case law from Colorado (prior appropriation is referred to as the “Colorado Doctrine”), New Mexico (which applies the same doctrine), and California (where both prior appropriation and the competing riparian doctrine apply) shows that prior appropriation thrives, and that the doctrine depends on traditional equitable remedies, like injunctive relief and its equivalents, to do so.

Central to the appropriative regime’s survival, from its Nineteenth century inception to the present, has been conscience, a mainstay in grants of equitable relief. Despite concerns that conscience might give rise to highly subjective judicial decisions tainted with abuses of discretion, conscience is often responsive to local morals and policies that are objective and discernible. Not only are prior appropriation and equitable relief thriving, therefore, but they owe a large part of their ongoing vitality to conscientious engagement with various concerns, including those of the environmental justice movement whose attention to the various constituencies, human and otherwise, affected by judicial and administrative determinations regarding water has been notable.

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Fall issue

The Water Law Review is excited to be publishing the following scholarly articles in Volume 18, Issue 1 this fall.

Man v. Mussel, The Gloves Are Coming Off: Supreme Court Equitable Apportionment And The Tri-State Water Wars

For twenty-odd years Georgia, Alabama, and Florida have been fighting a water war. The so called Tri-State Water Wars involves a dispute between the three states, each claiming a right to the fresh water of the Apalachicola-Chattahoochee-Flint (ACF) River Basin.

Up to this point, negotiations, water compacts, and various attempts at litigation have failed to settle the dispute. On October 1, 2013, the State of Florida sought permission from the United States Supreme Court to enjoin Georgia’s upstream, “excessive” consumption of the ACF Basins’ water. Specifically, Florida asks the Court to apply the federal common law doctrine of equitable apportionment, to properly allocate the water of the basin. Over Georgia’s objection, the Court granted Florida permission to file a complaint on November 3, 2014.

This Article begins with an in depth review over the history of the Tri-State Water Wars, tracing the issues between the three states from 1925 through the present day. The Article then proceeds to survey the most popular methods of resolving interstate water disputes in American law. Within this survey, is an in-depth, historical summary of the Supreme Court equitable apportionment doctrine. Finally, the Article analyzes the likelihood that the case will result in an equitable apportionment, what the apportionment may look like, and what consequences may result. This extremely topical issue has far reaching implications for Florida, Georgia, Alabama, and the rest of the country as populations increase and fresh water becomes more and more scarce.

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The Devolution of the No-Injury Standard in Changes of Water Rights

Colorado courts established the no-injury doctrine and prior appropriation at roughly the same time, and the General Assembly later codified them. The right to change a prior right was viewed as one of the sticks in the bundle of a water right and as an important tool to adapt to the changing needs of water users. The statutes were (and still are) permissive in nature, authorizing changes unless injury is established. If injury is shown, then a court may impose terms and conditions to avoid any injurious effect to vested or conditional water rights.

However, over the past couple decades Colorado’s courts have departed from the application of a fact-based, proof-driven no-injury test as the primary driver in change cases. Instead, courts now apply a two-part test. The Colorado Supreme Court added “quantification of historical consumptive use” as an independent test in 1999. In recent years, the quantification of historical use has risen to supremacy, often relegating the no-injury standard to an afterthought. While courts have been eager to quantify historical consumptive use in change cases (with reason where needed to prevent injury), the emphasis on quantification as the touchstone of change cases is not without consequences and is inconsistent with other important state water policies.

This Article traces the historic origins and application of the no-injury test in case law and statute, examines the newer two-part test outlined in Santa Fe Trail Ranches, reviews recent legislation and statutory changes that signal some legislative pushback against the Santa Fe Trail Ranches test, and analyzes the interaction of the quantification standard with other state water policies. Finally, the Article urges re-adoption of the no-injury standard as the touchstone analysis in water rights change cases.

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The Minute 319 Agreement: Lessons for International Water Management

On November 12, 2012, the United States and Mexico reached a historic agreement on the Colorado River known as Minute 319.

The five-year agreement, which was the result of years of negotiations and an inclusive stakeholder process rarely seen at the diplomatic level, became the first international water-sharing agreement to dedicate water for environmental purposes. This article carefully explores the physical, political, historical, and social barriers to sound river management, detailing the historically tense relationship between the US and Mexico and how NGO and stakeholder-led efforts transformed conflict into the cooperative pursuit of proactive solutions.

Meticulously researched, and providing comprehensive historical and legal context, this article provides an up-to-date account of the Law of the Colorado River, drawing from the authors’ firsthand experience and intimate knowledge of the Basin. Applying the concepts learned through the Joint Colorado River Cooperative Process, the article examines how such lessons provide a much-needed model that can be instructive for other international basins facing similar issues.

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