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-2- Traditionally, water was not made available simply to maintain habitat. But state water law ie changing. The law of interstate water allocation is in flux. The public trust doctrine is emerging. Federal water rights are being asserted to protect the natural environment on federal lands. And federal regulation of private water development is coming increasingly into play. Each of these five developments will be explored in this chapter. The bottom line is that conservationists are winning many of the legal and political battles, but for some species and some habitats, the war is far from over. A SHORT ffiSTORY OF WESTERN WATER LAW Rules Well Suited to a Parched Land In January 1849, gold was discovered in the scourings of the millrace of John A. Butter's sawmill on the American River in California. The gold rush began, and with it, a rush for water. Pioneers came in droves. to the mountains, and later settled in what was once called the Great American Desert. They left behind them a land crisscrossed with giant rivers and countless streams, abundant rainfall, and dense forests. Out Weat, they discovered barren land, hot sun, and trickles of water which they named "rivers". Mark Twain put the contrast between East and West into humorous perspective in his stories about his travel to Nevada as a young man: After leaving the Sink, we traveled along the Humboldt river a little way. People accustomed to the monster mile-wide Mississippi, grow accustomed to associating the term "river" with a high degree of watery grandeur. Consequently, such people feel rather disappointed when they stand on the shores of the Humboldt or the Carson and find that a "river' in Nevada is a sickly rivulet which is just the counterpart of the Erie canal in all respects save that the canal is twice as long and four times as deep. One of the pleasantest and most invigorating exercises one can contrive is to run and jump across the Humboldt river till he is overheated, and then drink it drys Claims to the flow of these "sickly rivulets" soon gave rise to what we now call western water law. As gold and silver miners' set up camp along the mountain streams and creeks throughout the Sierra Nevada and Rocky Mountains, they laid claim not just to the valuable ores they found, but to the water they used to flush gold through their sluices. As more miners showed up, streambeds went dry, and men quarreled. The first disputes were settled with Colt 45s, but soon a principle of frontier „ ,~ law emerged: First in time is first in right. It meant that those who put the water to use first had priority to continue using it over those who came later. This rule came to be known as the "prior appropriation doctrine". !Mark Twain, Rouehine It. Chapter 2?. 'These miners were not, of course, the first Europeans to settle in the West. They were proceeded by a handful of English and 1?~ench explorers and trappers who, by and large, left the land untouched and had no occasion to develop either water delivery systems or water laws. Earlier yet, the Spanish established colonies throughout the Southwest. Unlike the early English and wench, however, the Spanish were quick to develop elaborate irrigation systems. Southwestern Indian villages to this day hold what are called "pueblo water rights", community rights to water for agrictiltural and domestic use that were first recognized by the Spanish and Mezican governments.