Doctrine of Prior Appropriation

Doctrine of Prior Appropriation

This water law principle developed somewhat gradually in the western U.S. Many western streams had intermittent flows that were not amenable to the specifications of the Riparian Doctrine. Initially, the sparse settlement, general lack of competition for water resources, and seasonality of flow of western rivers allowed landowners to modify river channels to impound water for their use—first-come, first-served. Certainly, the Federal government did not anticipate widespread settlement of the West because it was so arid. By the early to mid-1800s, the influx of Mormon settlers in Utah required some solution to relatively sparse water resources in the face of increased agricultural activity. In response to the need and their religious principles, they established a water allocation system that favored shared use of that resource with a principle that favored beneficial use. However, the beneficial use philosophy was later replaced by that of the "Prior Appropriation Doctrine."

The Prior Appropriation Doctrine grew out of the California gold rush, and the need for gold miners to establish some system of mining claims and water use because of the limited water resources available. This is where the "first come, first served" aspect of water rights arose. California, which became a state in 1850, therefore adopted the Doctrine of Prior Appropriation that allowed diversion of water from a watercourse for use on non-riparian lands. In other words, if irrigation of crops or washing of mine tailings was required on lands with no direct stream access, these uses were permitted, with a priority (time of claim) basis. This doctrine established water rights, based on priority use, that could be sold or transferred as long as they did not interfere with another prior appropriation (" first in time, first in right" as long as this appropriation was properly filed). This doctrine prohibited "junior" (later claimants) users from using water if the resource was so limiting as to reduce that available to "senior" claimants below their allocation. Presently, the "California Doctrine" allows the application of both the Riparian Doctrine and the Doctrine of Prior Appropriation to operate (the so-called California Doctrine), depending on the availability of water resources (e.g., more water-rich northern California vs. arid southern California). Other states had somewhat different histories, but still made use of modified versions of the Doctrine of Prior Appropriation. Colorado, in particular, established the doctrine with respect to agricultural use for non-riparian lands. An interesting aspect of the Prior Appropriation Doctrine is the "use it or lose it" aspect. Once a claim is made, the water use must meet the stipulations of the claim annually, or, potentially, lose that claim. New claims relating to the expansion of irrigation, for example, are treated as "junior" claims that may or may not be honored, depending on the surface-water flow rate and other more senior claims.

Colorado, Alaska, Arizona, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming presently apply the strict Doctrine of Prior Appropriation as established in Colorado. California, Kansas, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas, and Washington use the California Doctrine, whereas Hawaii applies its own version of priority depending on the water use.