The Future of Prior Appropriation?

A report by the Environmental Law Institute: Western Water in the 21st Century – Policies and Programs that Stretch Supplies in a Prior Appropriation World - was released June, 2009 and says that prior appropriation state laws need to do some things to soften the added pressures their laws are expected to feel as supplies shrink and demand increases.  Basically two things:  Reduce disincentives to sustainability; and enhance market incentives to sustainability.  To reduce disincentives it lists a number of issues including:  addrerss the no forfeiture laws; address instream flow rights; embrace water banks; more water storage (especially groundwater); and a few more.

Market incentives to sustainability include allowing the use of conserved water and dealing with a robust water transfer processes that is expedited, protects third parties and is more generally more flexible.

The report also says that prior appropriation state laws have been fortunate enough to have survived earlier difficult times through "..deep-rooted entrenchment in practice and law..”.  The author (Adam Schempp) says this like shallower, less substantial laws would have been better?  And even if states do implement these recommendations (assuming none have them implemented already) what state is not going to try and deep-root these in practice as well? 

I was interested in this report in light of the new conservation ideas Kansas has been discussing of late - a replacement Water Rights Conservation Program (WRCP); a new, statutory Conservation use type; and a few others.  Our GMD 4 new conservation ideas clearly address some of these recommendations, but not all of them.  For this reason I’m not sure I agree with the report relative to all their recommendations, because I think Kansas is close to getting it right – at least in terms of what our conservation needs are.

It is possible that the author has a different concept of conservation, however.  The report says it offers its recommendations to “..lead to more efficient, adaptive, or sustainable water use decisions.”  Without definitions of efficient, adaptive and sustainable, it's hard to tell what the institute is really trying to convey.  Anyway, the full report is available on line at the ELI Website.  It's a compact 82 page report that gives specific examples from the following states:  AZ, CA, CO, ID, MT, NM, NV, OR, TX, UT, and WA.