By Steven Emmen, NFU Intern
It would be very difficult to be a successful farmer without adequate access to water. Depending on the topography of the region and the basin that a farmer is diverting from, they will face vastly different issues when acquiring water. When managing water resources there are two things to always remember: the quantity and quality of water available, also known as the two Q’s of water resource management.
The doctrine of prior appropriation addresses the issue of quantity. The idea originates in California; when large groups of individuals migrated out west for the California gold rush in the late 19th century, scarcity of water created conflict. Prior appropriation – or “first in time, first in right” – establishes that the first person to use a water source for “beneficial use” has the right to continue to use that water source. Since then, eighteen western states have adopted some form of this system to address their own problems with water scarcity. The prior appropriation system is drastically different than the riparian laws of states east of the Mississippi River and creates unique obstacles and opportunities for farmers.
There are a few characteristics of prior appropriation that are important for beginning farmers to understand. First off, water rights allocate a specific amount of water and set an appropriation date. When a farmer diverts water and is granted their appropriation date, it is similar to getting a number in line. Farmers have to wait until everyone with an appropriation date before theirs receives their allocated amount of water before diverting their own allocated water. If, for example, a dairy farmer first diverted water from a river in 1952, he or she would have an appropriation date from 1952, behind all appropriation dates that precede 1952.
Secondly, individuals with appropriative rights have the right to divert water away from the river. In the West, groups have come together to form companies that create and maintain ditch systems to divert water away from major water sources and towards producers. This allows water to reach lands much farther away from the source of water than the riparian system would allow for.
Additionally, water rights can be traded. This creates a market for water rights that can be purchased from producers and put to beneficial use. In some cases, the rights maintain the prior appropriation date that they originally held. Finally, producers applying for a new water right or purchasing a water right must prove they will be putting the water to beneficial use without waste.
Of the eighteen states with appropriative rights, Colorado is known for following what is considered to be “pure” prior appropriation, or most aligned with the prior-appropriation doctrine. It was considered to be so fundamental to that state that it was included in Colorado’s constitution. Most states use fundamentals of prior-appropriation to govern their waters but deviate to address the specific issues in their state. To find out more about your state water system contact the state engineer’s office.
Are you a beginning farmer in a prior appropriation state? How has it affected your operation?