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The Colorado Doctrine:Water Rights, Corporations, and Distributive Justice on the American Frontier

David Schorr - Yale University Press
Review by Susanna Eden

Early Colorado water law has long been recognized as a model for the Prior Appropriation Doctrine as it developed throughout the West. Adoption of prior appropriation was a deliberate rejection of eastern water law, which gave the owners of land located next to or across a stream equal rights to the use of the water. In The Colorado Doctrine, David Schorr examines the reasons for this rejection and for the choices embodied in the Prior Appropriation Doctrine in Colorado. His book presents at once a history of the development of western water law and an argument for questioning fundamental assumptions about this radical departure from established water law. With a cast of characters including greedy foreign capitalists, passionate agrarian reformers, intrepid miners and irrigators, and populist politicians, this history captures the human striving embodied in the law.

According to Schorr, prior appropriation as adopted in Colorado derives from two principles. First, everyone should have equal access to the use of water from a stream, not just riparian land owners. In the dry western climate, limiting rights to riparian owners would deprive the vast majority of citizens an essential resource. Second, all users of a stream are entitled to sufficient water to accomplish the purpose for which the water is appropriated. If too many people try to divide the waters of a stream among them, no one would have enough to support a farm or mining claim. Here is a seeming contradiction that is solved by giving priority use of the water to the first users. In this way, a balance is struck between equality and sufficiency.

In addition, the law required that the water must actually be used for a beneficial purpose. This meant that no one could claim more water than needed and, therefore, no one could profit from speculation in a resource that belongs to all.

Schorr maintains that these principles express the predominant sentiment in the West at the time, which was embodied in the ideal of “the greatest good for the greatest number”. His interpretation is based on a comprehensive review of relevant documents from the period, and several of the most evocative of these are reproduced in the book. Often, he lets the boosters, politicians and influential writers of the day speak for themselves on the pages.

Schorr’s goal is to turn the common wisdom on its head. He argues that the widespread distribution of resources, rather than economic efficiency, is the foundation of the Colorado Doctrine and therefore much of the water law of the West. This is a distinction that may not concern most readers, but it should not discourage them. Although it is clear that Schorr intends to contribute to a scholarly debate, the end is not only scholarly. The debate has infused current understanding and discussion on water policy, and his insights have potentially important implications for policy making.

In addition, the language is clear, the argument cogent, and the information full of interest to anyone curious about the history of western water law.

Water Transfers in the West

The report, Water Transfers in the West provides an overview on how the region can help meet growing demands for water with voluntary market-based transfers of water rights. The report is a product of a yearlong partnership between the Western States Water Council and the Western Governors’ Association, with input from more than 100 state administrators, environmental organizations, farmers, academics, and water resource professionals from across the West. Released in December 2012, the report defines a water transfer as a voluntary sale, lease or donation that can move water among agricultural, municipal, industrial, energy and environmental uses. The authors included only intrastate activities and excluded interstate transfers. According to the report water transfers are one component of a suite of tools western water managers can use to meet new demands from changes in farming practices, energy development, and urbanization. As such, transfers are the subject of intense interest among the western states. After tracing the history, drivers and trends observed in western water transfers, the report describes a range of water policy considerations. Among the major policy issues the report addresses are avoiding and mitigating damaging impacts on agricultural economies, rural communities and the environment. The following chapters look into legal provisions, state perspectives and available mechanisms. Final chapters draw conclusions about what states can do to provide frameworks for beneficial water transfers and look to next steps. The report recognizes that each state’s individual circumstances will determine how it should address transfers and highlights successful transfers and innovative practices as examples. Three case studies illustrate the challenges and innovations that have been used to shape water transfer agreements designed to leave all the parties better off. Appendices provide more in-depth information on rules, regulations, programs and water transfer arrangements for the states covered in the report. The full report is available on line at http://www.westgov.org/.