Tuesday, June 19, 2018

Prior Appropriation: the exciting rules we use to divide up water (!!!)

Subtitle: The most interesting subject in the world

Prior Appropriation Water Law is the boring term for the most interesting subject: the rules for how we split up the water in our rivers so it can be used to grow food and people. The rules say the first person to claim water always gets water, and the people who were late to the game are out of luck when supplies are short. Westerners decided on these rules in the 1800’s, but they still affect your daily life: anyone using any water needs a water right.

This scene brought to you by a water right to 125.22 cubic feet per second of water from the Jordan River with an 1862 priority for irrigation.
Water law is a tricky subject.  If you can listen past ‘prior appropriation,’ you’ll be quickly overwhelmed by the injustice of it all and a growing sense of confusion caused by all the exceptions to initially simple rules.  My entire academic career has been driven by my need to talk to people about water rights and birds, because even birds need water rights.  After 13 years of water rights stuff, I still cycle between thinking it’s unfair and really cool. 
Take a look at the map below.  What is the most visible difference between the western (left) half and the eastern (right) half of the country? 



You’re right!  The West is more brown than green.  The differences in color are caused by how much water each half has.  The West gets less precipitation than the East and gets most of it as snow.  Plus the West has deeper canyons hiding their rivers.  Because of these differences, there are different rules for using water use in the East and West.    
Everyone and everything needs water, which is simple and always true. Prior appropriation water law – the rules for dividing up water in the West - starts simple, but gets so complicated that there’s not one thing that is always true (except that people will always fight over their water). I tried to explain prior appropriation using the Up-Goer Five editor, which only uses the 10,000 most common English words (prior, appropriate, and rule are not common words). 
The first user gets all the water can-do's:
1. Everyone has to ask for a water right from the state.
2. Water has to be used for these things: growing food, watering houses, cleaning people, making things, growing some animals, and fun. Usually there is not enough water for animals and fun or for not-white people to grow food.
3. The water right you asked for says where, when, and how much water can be used.
4. The first person to ask always gets all their water.  They don’t have to share ever.
5. If there isn't enough water, the last people don't get their water but the first people still get all of their water.
6. It's very bad to not get water and there is less water around than we need, so some people are trying to change the can do's to be better for all the people and the world.


Under prior appropriation water law in Utah, using water you don’t have a right to (the official term for that is ‘thugging water’) is a felony.  
Want some more details?  Awesome!  (Special terms in italics).

Prior Appropriation Water Law (Utah)
Utah is the 2nd driest state in the US, receiving less than 34.3 cm (13.52 inches) of precipitation a year.  That’s not enough water to feed a lot of people and most of that water comes at a time (spring) and in places where we can’t use it (river bottoms).  Water rights are issued by the state to get water from where it flows naturally to where it’s needed. This is diversion and it requires dams and canals to work.
The things you can use water for are the strictly defined beneficial uses in each state’s laws.  Utah’s beneficial uses are irrigation, stock-watering, domestic, municipal, industrial, wildlife propagation, and recreation. (Note environment is not there)
Rights for some uses can be had year-round; others only during the part of year plants are growing (Period of Use). No one can use more water than is needed to grow or make what their water right is issued for (Duty of Water).
The way we divide up water is based on mining rules – the first to stake a claim is the first to get their water when it is scarce. When there isn’t enough water, the latest to make a claim is the first to get all their water turned off.
First in time, first in right 
If a water right is not used for 7 years in a row or the whole right isn’t used then it is forfeited.
Use it or lose it
Indian Reservations and environmental water needs weren’t considered legal until after most water had been given to others to use. That means that they might have recognized water rights, but no water is actually delivered. 
Paper water vs. wet water


Diverting water from where it naturally flows is a big change from the way water is used in rainier places.  In those places the rules follow Riparian Water Law, which allows anyone who owns land next to a waterbody to utilize a reasonable amount of water for any use. 
The most beautiful canal I know: The Bear Lake Outlet canal
Water rights are an interesting type of property that you can buy and sell, but you can’t keep it.  A water right is usufructuary which means you have the right and obligation to use water.  The state gives out water rights, which come with a lot of specifications:

A water right for Bear River Migratory Bird Refuge, the right is 3 pages long
“First in right, first in time’ is just the skeleton of a hefty body of laws and policies (The Law of the River).  For the Bear River right pictured above, all policies below also apply:
  • This is just one of 29 water rights the Refuge maintains
  • Lower Bear River water users meet to plan how water will be divided between the locals every year
  • The Bear River Development Act will require pulling water out of the Bear before it reaches this diversion (in the future)
  • Court cases from the 1900’s direct PacifiCorp to manage water is Bear Lake (which will eventually make it to GSL) to prevent flooding in Idaho
  • The Bear River Compact says how much of the river each state (UT, ID, and WY) can hand out; each state has different beneficial uses
The Refuge is the last user on the Bear River and in most summers there’s not enough water in the river to meet to their needs because that water is being used upstream.  While they have a right to 1,000 cubic feet per second (cfs) of Bear River water, there is only 200 cfs actually in the river during the summer when crops need irrigated.  A 1928 priority seems old, but in the history of Utah settlement it’s not, so there isn’t anyone with a younger right the Refuge could ask to turn off their water.     
The month water needs for the Refuge are written in their water right.  Any time on of the colored lines dips below the solid black line, it means there is less water available than the Refuge needs.  
The rules about water in the Western US are unfair, especially for Native Americans and the environment.  The reason for all the unfairness (aside from the history of shorting native people and the environment) is that the goal of prior appropriation is efficiency, not equity.  The harsh landscape of the West supports billions of people who don't worry about where their water comes from.  That’s insanely efficient, given how little rain we get.  Efficiency is an unsatisfying explanation for injustice, but it’s helped me interpret history better. 
Laws are tortuously slow to change, but they are changing to better reflect the values and understanding we now have about water.  Did you know storing rain water wasn’t legal in Utah until 2010?  It is now.  And I’ve been hearing rumors of finding a water right for Great Salt Lake (GSL), which is suffering even more than the wetlands around it.  If water law never changed, that wouldn’t even be considered because keeping water in GSL doesn’t require a diversion (a key component of prior appropriation) and staying great and salty isn’t one of Utah’s beneficial uses (yet). 
But how does prior appropriation affect you? News about snow, water-based recreation, fish, and even dust is ultimately about water rights.  When we have a bad ski season everyone (farmers, boaters, and asthmatics) suffers because it means there won’t be enough water to irrigate farms, fill reservoirs, or prevent dust storms at the same time. 
Farmington Bay of Great Salt Lake in August, 2013. Most of the Jordan River’s water was used for other things before it got to Great Salt Lake. 
Do you recreate in boats? Bodies of water with a dam on them are reservoirs that were built so people with water rights could save up their water until it’s needed. Powell, Strawberry, Pineview, and parts of Bear Lake are reservoirs. 
Dam it! Jackson Lake, WY is a reservoir
Do you eat food?  If it was grown west of the Mississippi River it was probably irrigated, which requires water rights. 
Cow food (i.e., alfalfa) accounts for a lot of our water use
Even the desert, defined by lack of water, is shaped by it.  Deep canyons are cut by rivers. Those stunning cliffs make it hard to access water, which necessitates the reservoirs mentioned above.

This is a lot of info, and I haven’t even gotten to groundwater, the link between water quality and water quantity, or the federal government and water.

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