7852

• UCREFRP Catalog Number: 7852
• Author: Bolin, J. H.
• Title: Of Razorbacks and Reservoirs
• USFW Year: 1993
• USFW - Doc Type: The Endangered Species Act's Protection of Endangered Colorado River Basin Fish
• Copyright Material: YES

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40

PACE ENVIRONMENTAL LAW REVIEW

[Vol. 11

agricultural uses.24 The prior appropriation doctrine en-
couraged water users to divert as much water as they could
possibly use as soon as they were capable of using it, in order
to stake a claim to a resource that was essential in an arid
land.25 In contrast to the riparian system that developed in
eastern states, western water users have historically been
under no obligation to avoid impairing the rights of down-
stream users. Senior appropriators have the right to their
entitlement of water, even if that entitlement completely
dewaters a stream.26
Western law, tradition and politics all stress consump-
tive uses of water. Historically, economic productivity in the
west has depended on ranching, farming, and mining, which
in turn depend on moving significant quantities of water out
of rivers and streams.27 The Colorado Basin is a maze of tun-
nels, ditches, aqueducts, and dams which enable the basin
states, which receive less precipitation per kilometer than
any other major watershed in the United States, to provide
water for more than fifteen million people.28
But these water projects, and the thinking behind them,
were ;products of a different era. Both law and politics have
gradually come to recognize that so-called "instream uses" of
water;'~a.n;beas or eVen.more, valuable than consumptive
uses. 2~"tW ~stern economies' are turning away from mining
and a~cu.:lture toward. toUrism and recreation.30 Several

24. N~rn;,an K. Johnson & Charles T. DuMars, A Survey of the Evolution of
Western Water Law in Response to Changing Economic and Public Interest De-
mands, 29 NAT. REsOURCES J. 347, 349-51 (1989).
25. See Arizona v. California, 373 U.S. 546, 555 (1963); Cappaert v. United
States, 426 U.S. 128, 140 (1976).
26. A DAN TARLOCK, LAw OF WATER RIGHTS AND RESOURCES ~ 5.08(1), at 5-
37 (1990).
27. See TARWCK, supra note 26, ~ 5.02[1), at 5-5 (1990); Charles F. Wilkin-
son, The Law of the American West: A Critical Bibliography of the Nonlegal
Sources, 85 MICH. L. REv. 953, 984 (1987).
28. Wydoski & Hamill, supra note 2, at 123.
29. See Steven J. Shupe, Keeping the Waters Flowing: Stream Flow Protec-
tion Programs, Strategies and Issues in the West, in WSTREAM FLOW PROTEC-
TION IN THE WFSr 1, 4 (1989).
30. See Brian Morris, When Rivers Run Dry Under a Big Sky: Balancing
Agricultural and Recreational Claims to Scarce Water Resources in Montana
and the American West, 11 STAN. ENVTL. L.J. 259, 260-61 (1992).

1993]

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