June 01, 2016

Public Trust vs. Prior Appropriation: A Western Water Showdown

J. Craig Smith and Scott M. Ellsworth

Two divergent legal doctrines, both steeped in history and practical experience, are on a collision course over allocation of water, the most precious resource in the American West. On one hand is the doctrine of the public trust—that the government is obliged to preserve and even reallocate water for the benefit of the public—tracing its roots to Roman law and Magna Carta. On the other hand is the doctrine of prior appropriation—individual property ownership interest in water—which organically developed in the nineteenth century out of conflicts among pioneer settlers over scarce water in an arid landscape. These two approaches highlight the clash between a public resource and private rights inherent in water allocation in the West. Although prior appropriation ruled the West from settlement through the first half of the twentieth century, public trust is now seen by many as the ultimate trump card to wrest water away from “outdated” and “inefficient” private property moorings, vestiges of the antiquated sensibilities of a bygone era unsuited to allocate the West’s water resources to meet the vastly different needs and priorities of modern society.

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