Thursday, May 26, 2011
Reed D. Benson (New Mexico) has posted Alive but Irrelevant: The Prior Appropriation Doctrine in Today’s Western Water Law, forthcoming in the Colorado Law Review. The abstract:
The Prior Appropriation Doctrine has long been the foundation of laws governing water allocation and use in the American West, but it has been under pressure from forces both external and internal to the western states. Twenty years ago, Prior Appropriation was pronounced dead in a provocative essay by Charles Wilkinson. Other scholars argued that it was still alive, but it now appears to have lost its force as the controlling doctrine of western water law. This article analyzes three recent cases upholding state laws that undermine a fundamental Prior Appropriation principle, then considers the water policy implications of the western states’ departure from Prior Appropriation.