WSPC01188

• File Number: 8064
• Description: Indian Water Rights
• State: CO
• Date: 1/1/1987
• Author: American Indian Reso
• Title: Tribal Water Management Handbook
• Water Supply Pro - Doc Type: Report/Study

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CONFUCTS, TRENDS & CHALLENGES

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"privatized" through ownership. The enthusiasm for privatization was particularly
strong in the nineteenth century West where new settlement and economic
development was strongly encouraged. At the same time the public interest in water
was asserted in such phrases as "the waters belong to the public" or in the occasional
exercise of federal or state authority over navigation.

Over time concern arose over some abuses from the private use and control of
water, such as pollution or the monopolized control of water sources. As a result, the
public interest in water resources was redefined. The effort to rediscover and expand
public rights in water is symbolized in the recent growth of the "public trust"
doctrine, which holds that private water and land rights relative to navigable waters
are conditioned by pennanent public rights of access and preservation. Not all states
have recognized the public trust doctrine, but its evolution signals an ongoing process
of adjusting private water rights to accommodate changing notions of the public
interest, just as private land rights have become qualified to satisfy community
demands.

Historic Use Y. Reallocation: Scarcity Promotes Change

Much of the surface water in the West has been appropriated; it is either being
used or is covered by water right claims. This means that many new demands for
surface water can be supplied only if water is "reallocated" from existing uses or
claims to new ones. IS Such reallocation can happen by the transfer of all or part of
the water rights owned by an existing user or claimant. In states where water rights
holders are allowed to retain rights to water saved through water conservation efforts.
reallocations may be possible without retiring existing uses. '

As the demand on limited water supplies increases, creating greater water
scarcity, the pressure for more water conservation and reallocation will build. Water
reallocation will be to the twenty-first century what initial water allocation was to the
last half of the nineteenth century and to a good part of this century. As already
noted, much of the reallocation is expected to be from agricultural to municipal and
industrial uses.

Priority v. Shortage-Sharing: Moderating Risk

Under both the prior appropriation doctrine and the reserved rights doctrine,
having an early (or "senior") priority date for a water right is important. For an
appropriative right the priority date is the date on which a specified act of
appropriating water takes place. For a reserved right the priority date is the date on
which the reservation is created.

The holder of a water right with the latest (most recent or junior) priority date
will be the one first deprived of water if a shortage occurs. Junior water rights
holders assume more of the risk of shortage, then, than do senior right holders. Thc
increased risk associated with junior water rights can discourage investment and
development. As a result, senior water rights are more valuable. Cities and
industries seeking dependable water supplies prefer to acquire senior rights.

The gap in risk between senior and junior water rights can be narrowed or closed
by contract. The affected panies can agree to "share" a portion or all of any