Public on Paper: The Failure of Law to Protect Public Water Uses in the Western United States

Abstract

Water conflicts in the western United States increasingly arise from competition between traditional economic uses (especially irrigation, municipal supply and hydropower) and public uses (especially environmental protection and water-based recreation). Western United States water law, based on the prior appropriation doctrine, has always promoted maximizing ‘beneficial use’ of the resource and has effectively protected water allocations for traditional purposes. Public water uses also enjoy some legal protection, but it exists mostly on paper; in practice, neither statutory public interest provisions nor the non-statutory public trust doctrine has been widely effective.

This paper identifies the relevant legal principles and briefly explains how they have failed to protect public water uses in the western United States.