The Constitutional Mythology of Western Water Law

Abstract:     
A mural in the capitol of Denver reads "Here is a land is written with water." Water is sacred in the western United States, and this respect extends to the western legal system for water allocation, known as the prior appropriation doctrine. Under this doctrine, non-wasteful, beneficial uses of water are constitutionally protected on the basis of "first in time, first in right." This is a doctrine born of necessity. Courts have elevated the diversion element of the prior appropriation doctrine to constitutional status, creating the constitutional myth that all water uses must involve diversion in order to receive protection. However, the state courts have abandoned their rhetoric by allowing non-diversionary uses such as environmental preservation and recreation, but nonetheless the mythology persists.

This article argues that diversion has wrongfully replaced beneficial use as the central constitutional requirement of a water right, and suggests ways that this process may be reversed. In doing so, the article examines the core concepts of the prior appropriation doctrine to reveal the historical underpinnings of the constitutional myth, and also addresses diversion requirement of the myth. Moreover, it considers the clash between modern environmentalism and traditional concepts of water use, suggesting that the demise of the mythology has begun. Finally, this article evaluates the legacy of the myth, including the continued judicial discomfort with the diversion requirement which leads to confusing legal precedent and poorly-reasoned decisions.

Keywords: prior appropriation doctrine, water use, Constitutional myth, water law

Accepted Paper Series