Transcript Prior Appropriation: A Perfectly Resilient System

BENSON AND CRAIG, THE END OF
SUSTAINABILITY, SOCIETY NATURAL
RESOURCES (2014)
Define a resilient system as one which
 Can undergo change and still retain the same controls on function
and structure
 Is capable of self-organization
 The ability to build and increase the capacity for learning an
adaptation
PRIOR APPROPRIATION HAS ADAPTED TO THREE
MAJOR UNANTICIPATED SHOCKS
1. The Multiple Purpose Dam
2. The Shift From Irrigated Agriculture to Urbanization
3. The Rise of Fish Power,
AND CAN ADAPT TO CLIMATE CHANGE
MILLER DAM
SCHODDE V. TWIN FALLS 224 U.S. 107 (1912)
After the Miller Dam wiped out his water wheel, which
Schodde used to bring water from the Snake River to
irrigate bench land, he argued that his prior
appropriative right included the current at the time of
his appropriation. The Supreme Court disagreed and
purged prior appropriation of any vestiges of the
riparian natural flow by holding that an appropriation
had to be reasonable.
TTHE COWBOY WEST IS THE MOST URBANIZED AREA
OF THE COUNTRY
According to the 2010 census, 77% of New
Mexicans live in urban areas (compared to
90% for Colorado and Utah and 86% for
Arizona) thanks to:
THE GROWING CITIES DOCTRINE
THE DEMISE OF THE APPURTENCY DOCTRINE
STEVE REYNOLDS CONJUNTIVE
MANAGEMENTOG GROUND AND SURFACE
WATER IN THE RIO GRANDE
BREAKING BAD
INSTREAM FLOWS
Almost western states have eliminated the physical
diversion requirement to allow instream flows and
recognize the “use” as beneficial. The road has been
rockier in NM, but they exist. Att’y Gen. Opinion, 9801.
THE GILA
CLIMATE CHANGE: NO PROBLEM
Prior appropriation is a complete risk assignment system
which clearly assigns the burden of adaptation to
junior right holders. Thus,
 The system adapts, does not lose control and,
 Can return to a pre-disruption state,
 And markets (temporary or permanent transfers) can
correct any inefficiencies
BUT DO WE LIKE THE RESULTS
1. Urban Areas will outcompete an economy that contributes
less than one percent to the state’s GNP but uses 87% of
the water
2. New Mexico’s rural economy could suffer $100 billion in
direct economic loses and up to $200 billion in indirect
loses.
3. This figure does include the loss off ecosystem services
provided by agriculture. [Hurd and Coonrod, Climate
Change and Its implications for New Mexico’s Water
Resources and Economic Opportunities ]
LAND OF NOT SO MUCH ENCHANTMENT
4. Tourism produces $5.5 billion in revenues,
but reduced snow pack will impact the ski
industry, warmer, ash-laden rivers will impact
fishing and rafting , and heat waves, more
pollen and deteriorating air quality may impact
craft-food tourism in Santa Fe and
Albuquerque. [Repetto, New Mexico’s Rising
Economic Risks From Climate Change]
THREE ADAPTATION SCENARIOS
The Easy One
1. More integrated regional planning and
conjunctive surface and groundwater
management
2. The use of markets to reallocate water to
urban and environmental uses
3. The promotion of more aggressive
agricultural and urban conservation efforts
A HARDER ONE
1. The promotion more energy efficient urban
settlement patterns
2. Technological fixes such as desalinization
3. Mandatory technology-forcing conservation
4. The capture of more run-off by both on and
off-stream storage
THE ‘I NEVER SAID THIS SCENARIO’
1. The reallocation of existing supplies by
incorporating pro rata sharing into the law of
prior appropriation during extreme” droughts
2. Federal preemption of state water law