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83 U. Colo. L. Rev. 675 (2011-2012)
Alive but Irrelevant: The Prior Appropriation Doctrine in Today's Western Water Law

handle is hein.journals/ucollr83 and id is 681 raw text is: UNIVERSITY OF COLORADO LAW REVIEW Volume 83, Issue 3 2012 ALIVE BUT IRRELEVANT: THE PRIOR APPROPRIATION DOCTRINE IN TODAYS WESTERN WATER LAW REED D. BENSON* The Prior Appropriation Doctrine has long been the foundation of laws governing water allocation and use in the American West, but it has been under pressure from forces both external and internal to the western states. Twenty years ago, Prior Appropriation was pronounced dead in a provocative essay by Charles Wilkinson. Other scholars argued that it was still alive, but it now appears to have lost its force as the controlling doctrine of western water law. This Article analyzes three recent cases upholding state laws that undermine a fundamental Prior Appropriation principle, then considers the water policy implications of the western states'departure from Prior Appropriation. INTRODUCTION ........................................676 I. KEY PRINCIPLES OF THE PRIOR APPROPRIATION DOCTRINE ........................................679 A. Original Fundamentals ......................680 B. Statutory Refinements ................. ......682 II. PRIOR APPROPRIATION UNDER PRESSURE ............685 III. HOW THE WESTERN STATES HAVE UNDERMINED PRIOR APPROPRIATION ..................... .....690 A. Three Recent Cases Addressing Core Prior Appropriation Principles...... .. . ...............691 1. In Idaho, Making Prior Appropriation More Reasonable as Between Users...... .....691 2. In Washington, Recognizing Water Rights Regardless of Beneficial Use......... .........695 3. In New Mexico, Allowing New Uses Despite Likely Harm to Existing Ones .... ............699

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