AGRICULTURE September 2, 2015

New Report Underscores Importance
of Water Rights System

Why the Doctrine of Prior Appropriation Works in the West

What if someone suggested to you a new policy-a policy that would result in less food production, a loss of state's rights for more federal control, less water for your household, for migratory birds and economic activity, and spawn endless lawsuits?

The current California and Western drought has created an opportunity for some to sound the drumbeat calling for the end of "prior appropriation", the doctrine that has governed the distribution of water since Americans settled the arid West.

The Family Farm Alliance (Alliance), which represents irrigators in the 17 Western states, has issued a report on the prior appropriation doctrine, and its role in the modern water world. The Argument for the Prior Appropriation Doctrine to Allocate Water in the Western U.S. can be downloaded here or at the Family Farm Alliance website:

Agriculture in the West -as in other parts of the world - accounts for a large portion of the water used for human purposes. Many of the senior water rights holders in the West are farmers and ranchers. Not surprisingly, the calls for an end to prior appropriation are coming primarily from academia, some environmental and development interests, and junior rights holders. They claim that the Western water rights system is outdated and hampering efforts to address the West's historic drought.

The Alliance's paper demonstrates this is not the case.

For example, critics claim that the rigid nature of the prior appropriation doctrine complicates water transfer opportunities and hurts the environment.

"In fact, temporary water transfers are actually routine in many areas of the West," said Alliance Executive Director Dan Keppen (OREGON) "Our report describes specific examples showing how the water rights system protects public trust resources, which further emphasizes that resolving environmental issues requires balance."

Consider California's Sacramento Valley, where water has been re-managed in very creative ways over the past several decades for the benefit of salmon and birds using the Pacific Flyway. The major rivers and streams of the Sacramento Valley provide essential pathways for spawning salmon and steelhead, where flow agreements to benefit these fish exist on every major watercourse.

"Our report outlines other examples that show how win-win solutions can be developed for farmers and the environment, crafted within existing water rights systems," said Sandy Denn, an Alliance director and rice farmer from the Sacramento Valley.

Amidst allegations that the prior appropriation doctrine is flawed and should be reconsidered have come calls that the existing water rights systems should be reformed, backed by assertions that the system should be replaced with something similar to one developed in Australia. The Australian "model" is based on a strict hierarchy whereby water is first allocated to critical human needs, then to the environment and lastly to productive water users - including food producers.

"Our paper explains how the Australian Water Plan "experiment" has resulted in disenfranchised farmers and ranchers, overburdened the Australian economy with an unsustainable plan, and caused serious damage to the country's food producing region," said Patrick O'Toole (WYOMING), President of the Alliance. "In fact, some in Australia are now looking at reining in their overbearing, top-down water policies in an attempt to undo this damage."

In fact, one week ago the Australian government passed a bill that caps the amount of water purchased for the environment because the country's leaders have realized that stripping irrigation communities has severe negative impacts.

The Alliance report explains why dismantling the doctrine of prior appropriation in the West would destroy the benefits associated with generational ownership of water rights and undermine the considerable investments made based solely on the law of the land. Further, the certainty required by all water users would be erased. Finally, any public "taking" of water rights would violate the Fifth Amendment of the U.S. Constitution, which directs the government to compensate the owner of any right if it is going to be taken away or restricted.

"If wholesale changes are made to the water rights system, the consequences would be very far reaching," said Ron Rayner, an Alliance director who farms in Arizona and California. "We remain convinced, now more than ever, that the doctrine of prior appropriation and the need for certainty in Western states' allocation systems make it this doctrine the cornerstone of Western water resource allocation policy."

For more information:

Patrick O'Toole
970-376-6311 (cell)

Dan Keppen

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