At the End of the Day: Are the West's General Stream Adjudications Relevant to Modern Water Rights Administration?

57 Pages Posted: 16 Jan 2016

See all articles by Michelle Bryan

Michelle Bryan

University of Montana - Alexander Blewett III School of Law

Date Written: September 1, 2014

Abstract

For all the monumental efforts involved, water rights adjudication is merely one piece of a larger water rights legal system that also includes permitting of new water uses, review of water use changes, and on-the-ground administration of water rights through distribution and enforcement. The integration of these processes is vitally important, because without comprehensive adjudication of historic water rights, it is difficult to determine whether water is available for new uses, whether changes may harm existing users, or whether water deliveries are correctly fulfilling legal rights to use water.

As historic adjudications such as the Big Horn River and Snake River Basins reach finality, thoughts turn toward a post-adjudication world. One where emphasis shifts from determining the basic characteristics of water rights to creating nimble, predictable water rights systems that allow uses to adapt to the emerging needs of the West; one that fosters the accurate, efficient water delivery throughout complex, interconnected watersheds. And in places where adjudications are lagging (or languishing), the focus is on whether emerging lessons from these freshly-minted water decrees should trigger innovations in how future water courts approach their work. At bottom, these important and long overdue conversations center on how judicially driven water rights proceedings integrate with modern water rights permitting, record keeping, and distribution processes located predominantly within state agencies.

This article provides a modest starting place for exploring how adjudications in various western states function together with modern permitting and administration of water rights. By locating adjudication within a state’s broader water rights system, the hope is to elevate in our water law discourse the question of whether, at the end of the day, adjudication proceedings are meaningful in the day-to-day world of water use. Part I summarizes in broad strokes the way various western states approach the interrelated functions of adjudication, permitting, and administration. Part II then highlights some common, emerging issues among state water systems as well as some emerging ideas for integrating judicial and agency water rights functions. This article concludes that the time has come to design the next generation of water rights systems so that adjudication and regulation speak a common language and function more seamlessly to best meet the water use needs of the West.

Keywords: water rights, adjudication, permitting, water administration

JEL Classification: K11, K32, Q15, Q25

Suggested Citation

Bryan, Michelle, At the End of the Day: Are the West's General Stream Adjudications Relevant to Modern Water Rights Administration? (September 1, 2014). 15 Wyo. L. Rev. 461 (2015). Available at SSRN: https://ssrn.com/abstract=2715709

Michelle Bryan (Contact Author)

University of Montana - Alexander Blewett III School of Law ( email )

Missoula, MT 59812-0002
United States
406.243.6753 (Phone)

HOME PAGE: http://www.umt.edu/law/faculty/mudd.htm

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