Public Interest Review of Water Right Allocation and Transfer in the West: Recognition of Public Values
![handle is hein.journals/arzjl19 and id is 695 raw text is: Public Interest Review of Water Right
Allocation and Transfer in the West:
Recognition of Public Values
Douglas L. Grant*
I. INTRODUCTION
Historically, people in the western United States valued water mainly,
if not exclusively, for purposes such as mining, manufacturing, irrigated
agriculture, domestic use, and hydropower generation.' In recent years,
however, concern has grown about public values in water, including
recreation, scenic beauty, and fish and wildlife habitat.2 The western
states have responded in various ways. Many have designated free-
flowing rivers, reserved minimum streamflows, or withdrawn specific
waters from private appropriation.' Some have allowed instream ap-
propriations.4 In at least two states, courts have suggested that the
public trust doctrine5 may limit the exercise of existing private water
* Professor of Law, University of Idaho. B.A. 1962, University of Iowa; J.D. 1967,
University of Colorado. This article is an expanded version of a paper that the author presented
at a conference on Water as a Public Resource: Emerging Rights and Obligations sponsored by
the Natural Resources Law Center of the University of Colorado on June 1-3, 1987, in Boulder,
Colorado.
1. See 1 W. HUTCHINS, WATER RIGHTS LAWS IN THE NINETEEN WESTERN STATES 525-26
(1971); Wilkinson, Western Water Law in Transition, 56 U. COLO. L. REV. 317, 317-21 (1985).
2. See Wilkinson, supra note 1, at 322. The National Water Commission reported that [t]he
people of the United States give far greater weight to environmental and aesthetic values than
they did when the nation was young and less settled. NATIONAL WATER COMbUSSION, NEW
DIRECTIONS IN U.S. WATER POLICY 5 (1973).
3. For examples and citations to statutes, see F. TRELEASE & G. GOULD, CASES AND MATERIALS
ON WATER LAW 54-56 (4th ed. 1986); Ausness, Water Rights, the Public Trust Doctrine, and the
Protection of Instream Uses, 1986 U. ILL. L. REV. 407, 431-33. Two older articles that remain
useful for their analytical value are Tarlock, The Recognition of Instream Flow Rights: New
Public Western Water Rights, 25 ROCKY MTN. MIN. L. INST. 21-24 (1979); Tarlock, Appropriation
for Instream Flow Maintenance: A Progress Report on New Public Western Water Rights,
1978 UTAH L. REV. 211.
4. See Ausness, supra note 3, at 429-31.
5. A state owns the beds of navigable waters within its boundaries. Pollard's Lessee v.
Hagan, 44 U.S. 212 (3 How. 1845). In the leading case of Illinois Cent. R.R. v. Illinois, 146 U.S.
387, 452 (1892), the Court held that a state holds such lands in trust for the public and cannot
convey them into private ownership unless such conveyance would promote the public interest or
at least would not impair the public interest in the lands and waters remaining. The cases cited](ViewImageLocal?handle=hein.journals/arzjl19&div=35&collection=&method=preview&ext=.png&size=3)
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Public Interest Review of Water Right Allocation and Transfer in the West: Recognition of Public Values
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