History of Water Rights in the United States

Water is a precious resource with seemingly endless demands.  It is essential for drinking, agriculture, recreation, plumbing, the ecosystem and countless other uses.  Rivers do not follow political boundaries; they flow through states and over international borders, and at times we can lose sight of the fact that water may not always be as plentiful or at our disposal the way we imagine it to be.  Often we are unaware of how water rights came about, what our legal rights are concerning water and who decides its destination.  

Surface water in the United States is governed in two ways - varying between the East and West. In the East the “riparian” doctrine governs water use. It states that if you live close to the river or to a body of water, you have reasonable rights to use that water. In the West, often times the distance to a water source is significant.  The riparian doctrine was not a good fit for the western portion of the country and so the “prior appropriation” doctrine was created to overcome the challenges. The prior appropriation states that while no one may own the water in a stream, all persons, corporations, and municipalities have the right to use the water for beneficial purposes. It states that the right to use water could be obtained by taking the water and putting it to beneficial use; the right, also called a “priority” was limited to the amount of water that was beneficially used; “first in time was first in right” and water must be used or the right was lost. The first person to use the water is called the “senior appropriator” and the next in line is the “junior appropriator.”

What are the circumstances that led to prior-appropriation water rights in the West? The eastern portion of the country modeled the European method of handling water matters while the West modeled the Spanish. As miners moved west for the Gold Rush they were greeted with little if any laws governing surface water. Around this time prior appropriation was created in California to handle the situation. Since the miner’s prime interest was to establish rules to govern access to the gold, they adopted the first-come first-served rule.  Since water was instrumental to the mining process, soon rules were required to govern the allocation of water.  Ditches and canals were constructed to bring water to work sites. Later dams and reservoirs were built to deal with arid seasons. The dry climate was a challenge. Settlers arriving first seemed to do fine but others that followed did not fare as well as limited water became a factor in the production of the region’s mineral wealth. Miners used the same system for claiming water as staking mineral claims; first come gets the best water right. Miners that followed were required to make do with what was left, if anything. Even if located upstream from a prior user’s diversion works, a subsequent “junior” water user was required to allow enough water to pass to meet the need of the downstream “senior” appropriator. As the gold rush subsided, farming became the main requisite for water, and these same rules followed suit.

Today, the same original ideas remain intact in the West but the details of prior-appropriation water rights vary from state to state.  The future of water rights will continue to evolve as resources continue to be stretched.