Climate crisis vs. Western water law
A view of Reflection Canyon in Lake Powell, Glen Canyon National Recreation Area, in 2013. Sedimentary rock forms the landscape surrounding Lake Powell, on the Colorado River at the Utah-Arizona border. (Gary Ladd/National Park Service/Public domain)
Climate scientists have long warned of the impending crises as human pollutants create an ever-warming planet. We are now living with those grim predictions come true as the “sixth great extinction event” wipes away thousands of species, the oceans acidify and warm, wildfires rage even on the Alaskan tundra, and the planet’s ice caps inexorably melt and raise sea levels.
While the desperate calls for new laws to combat on-going atmospheric pollutants ring out across the globe, they are unfortunately ignored by societies resistant to necessary change. As the mega-drought ravages the American West, a long-standing law determining water allocation has come into sharp focus. And from all evidence, Western water law with its Doctrine of Prior Appropriation will fall to the needs of millions of people.
Western water law, in simplest terms, says “first in time, first in right.” In other words, to keep the early settlers of the West from killing each other over who diverted water from the rivers and streams, a system of “water rights” was instituted. Those who sought to divert water, be it for irrigation, mining, or domestic use, were required to post — and record — the amount of water they “claimed,” the point of diversion, and the use. The earliest “senior” rights took precedence over later claims and the system worked — at least marginally.
Fast forward a century or more and that’s no longer the case. Just because someone was the first to say “I claim all the water in the stream for my use” 100 years ago denies the basic principle of democratic governance, which is “the greatest good for the greatest number.”
Moreover, given that so many of the early rights were claimed for irrigation, the very real question arises as to the relative values to modern society of such use. For example, in Montana, a mere 1.7 percent of water is withdrawn for public use while close to 97 percent of the water consumed goes to agriculture — with the lion’s share of that going to irrigate hay to feed cattle.
While this made sense from the perspective of the early settlers, it doesn’t make sense in the 21st Century with our considerably more diversified economy and uses for this essential resource. That’s especially true when the availability of water in the West is severely diminished by lower snowpacks, earlier spring warming, and longer, hotter summers that routinely see triple-digit temperatures as the norm.
Montanans caught a break this year with a cooler and wetter spring. But as just announced, “hoot owl” restrictions are now being implemented on rivers as massive irrigation dewatering leaves world-famous trout streams with low flows that are too warm for coldwater fisheries.
California, in the midst of its worst drought in 1,200 years, is reverting to the basic tenet of capitalism. Namely, if you want something, you buy it. In this case, it’s considering appropriating $1.5 billion in the state budget to buy land with “senior” water rights from voluntary sellers. As reported, the goal “would be to ‘retire water use incrementally from multiple water uses in a basin and across wide geographies’ which would help provide clean drinking water while also improving fish habitats and wildlife refuge conditions.”
In short, Western water law must change to meet the needs of “the many” in society rather than the few who, due to an antiquated law, claim vast amounts of water for private use. It will not be easy, nor quick — but the exigencies of modern society leave virtually no choice and the Doctrine of Prior Appropriation will eventually fall.
George Ochenski is a longtime Helena resident, an environmental activist and Montana’s longest running columnist.
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