8093 - Laserfiche WebLink

Home Browse Search

I I I I I I I I I I I I I I I I I I I Chapter 1 Recognizing the Value of In-Place Uses of Water in the West: An I~troduction to the Laws, Strategies, and Issues Steven J. Shupe Lawrence J. MacDonnell Free-flowing waters have been appreciated and revered in the western United States for as long as people have inhabited the region. Over the centuries, water in western rivers, lakes, and streams played major pragmatic roles in tribal fishing, transportation, and in maintaining important habitat for hunting. But the value of these waters went well beyond practical functions. When new settlers immigrated from the East and South, they found people to whom free-flowing waters were key to spiritual sustenance and religious practices. Although many of the 19th century settlers undoubtedly appreciated the intangible value of free-flowing waters, this appreciation was dominated by the concurrent belief that diverting large quantities of water was essential to prospering in this arid land. Entire streams were taken from their channels when placer miners discovered gold deposits to be washed from the Sierra Nevada hillsides of California. Rivers were reduced to empty beds during the end of hot, dry summers on the Colorado high plains as pioneers irrigated their thirsty crops. Throughout the West, water was taken from once-thriving streams to satisfy the needs of crops, people, and new economies. This belief in the need for water diversions was reflected in the laws that developed in local courts and legislatures. The first person to take water from a stream and apply it to "beneficial" use acquired a vested right to continued use of the water. Unlike the easterner who was constrained by riparian water law, a western water user generally could dry up the stream even if people who lived along its banks later wanted to use a bit of water for their homes and livestock. "First in time, first in right" rang through western courtrooms, and this doctrine of prior appropriation! accelerated the emptying of rivers and streams of the West: No water right was created unless the flow was diverted from its natural bed-and the law rewarded the quickest to act. A doctrine of prior appropriation was consistent with a young nation's desire to settle the West and to encourage the exploitation of its vast resources base. It failed, however, to take into account the important functions that free-flowing waters serve in this arid region. As the decades passed and additional diversions occurred, people began fighting to maintain the values-both economic and intangible-that result from the in- place presence of water. State legislators considered various proposals to protect important rivers and streams. Tribal governments asserted their rights to Ostreamflows needed to at least partly support fisheries and religious practices. Private groups and individuals sought to wrest from prior appropriators the waters needed to replenish