8014

• UCREFRP Catalog Number: 8014
• Author: McDonald, W. J.
• Title: The Upper Basins' Political Conundrum
• USFW Year: 1997.
• USFW - Doc Type: A Deal is Not a Deal.
• Copyright Material: NO

t

An Overview of the Institutional Setting
California gold mining camps in the mid-1800ss and eventually spread in
statutory form to all 17 western states. However, several western states have
developed hybrid systems that employ elements of both the riparian and prior
appropriation doctrines.'
In essence, the doctrine of prior appropriation provides that the one who first
put a water supply to a beneficial use has the superior right to it in times of
shortage as against those who came later in time. Succinctly put, "first in
time is first in right." Under this system, holders of junior rights (i.e., those
who came later in time) must forego the use of water so that holders of senior
rights (i.e., those who came first) can receive a full supply of water if stream
flows are not sufficient for all users. Furthermore, the amount of water to
which one is entitled is quantitatively defined (usually in cubic feet per
second or acre-feet) and water can be put to use on lands not adjacent to the
stream from which they are diverted.
In whatever form adopted by each western state, the doctrine of prior
appropriation came to govern the relative rights of claimants to the flows of a
given stream within the boundaries of a given state. But the rivers of the
West, as elsewhere, have a proclivity for crossing state lines, thus giving rise
to the need to define the relative rights of water users in one state vis-a-vis
those in another to the waters of such interstate streams.
Apportionment of Interstate Rivers8
Allocation of the waters of interstate streams has been accomplished in three
ways: by litigation, by negotiation of compacts between states, and by an act
of Congress. While the former can and has involved litigation between
private claimants,9 this paper will address only litigation between states. All
c Overviews of the historical roots and evolution of the prior appropriation system may be
found in 1 W. HUTCHINS, WATER RIGHTS LAWS IN THE NINETEEN WESTERN STATES
157-80 (Natural Resources Economics Division, Economic Research Service, U. S. Department
of Agriculture, Misc. Publication No. 1206, 1971); D. GETCHES, supra note 5, at 77-82;
Johnson and DuMars, A Survey of the Evolution of Western Water Law in Response to
Changing Economic and Public Interest Demands, 29 Nat. Resources J. 347-52 (1989); and
WillQnson, Western Water Law in Transition, 56 U. Colo. L. Rev. 317-20 (1985).
' See D. GETCHES, supra note 5, at 190-206, 214-16.
e Unless noted to the contrary, this discussion is drawn from D. GETCHES, supra note 5,
at 402-415.
9 Id. at 397-402.
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