REIMAGINING WESTERN WATER LAW: TIME-LIMITED WATER RIGHT PERMITS BASED ON A COMPREHENSIVE BENEFICIAL USE DOCTRINE

MICHAEL S. TOLL

The dwindling supply of western water resources and the increasing water demands of a growing population necessitate a fundamental reexamination of the prior appropriation system.  As a nineteenth century system of water allocation, prior appropriation, traditionally applied, is ill-equipped to effectively and efficiently cope with these twenty-first-century realities.  The system must be reformed.  The reimagining of western water law has two components.  First, the determination of whether water is being put to a “beneficial use” should be based upon a holistic, comparative assessment of the relative value of the use of that water—an exercise in values and priorities that is conducted on a basin-wide scale.  The beneficial use analysis should take into account issues integrally related to water use, such as energy intensity and water pollution.  Second, western states should adopt a renewable water right permit system subject to periodic review where, upon the expiration of the permit, the water right holder is subject to a reexamination of the beneficial use of the appropriated water according to the newly refashioned doctrine.  This two-part modernization of the prior appropriation system will allow for a more sustainable allocation of scarce western water resources.