The United States Supreme Court
The United States Supreme Court has heard 137 cases under its Original Jurisdiction.[1] The majority of the original jurisdiction cases from the west and southwest involve interstate water disputes. e.g., Kansas v. Colorado case (Original No. 105) and the Arizona v. California case (Original No. 8). Indeed these cases address a problem that has bedeviled the American west for over one hundred years: the apportionment of river water; not for potable or drinking purposes but mostly for agricultural purposes in a desert to semi-desert environment.
Water appropriation in the United States is rooted in two predominant norms. The region east of the Mississippi River generally follows the common law riparian legal regime,[1] while the western portion of the country – west of the 100th meridian[2] - follows the doctrine of prior appropriation.[3] These two doctrines are intertwined because Kansas is a mixed jurisdiction.
[1] The essence of the common law riparian right doctrine and water allocation scheme is that a person who owns land on, adjacent to, alongside or crossed by a natural watercourse has a legal right to access and use the water running through the property. See e.g., Baltimore & O.R. Co. v. Chase, 43 Md. 23, 1875 WL 4912 (Md. 1875), at * 5, stating that
These riparian rights, founded on the common law, are property, and are valuable, and while they must be enjoyed in due subjection to the rights of the public, they cannot be arbitrarily or capriciously destroyed or impaired. They are rights of which, when once vested, the owner can only be deprived in accordance with the law of the land, and, if necessary that they be taken for public use, upon due compensation.
[2] The 100th meridian is a line of longitude that is 100° west of Greenwich, England. The meridian extends from the Arctic Sea south to and crosses the following states in the United States, from north to south: North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, the Texas / Oklahoma border and continues through Texas into Coahuila, Mexico at 28°0’N 100°0’W. It separates the wet east from the arid west. See generally, Wallace Stegner, Beyond the Hundredth Meridian: John Wesley Powell and the Second Opening of the West (1954).
[3] The general principle of the doctrine of prior appropriation is that water rights are unconnected to land ownership, and can be sold or mortgaged like other property. At its core is the principle of first in time, first in right. That is, the first person to use a quantity of a river’s water for a beneficial use has the right to continue to use that quantity of water for that purpose, and is known as the “senior appropriator”. Subsequent users, known as “junior appropriators” – in a line of five appropriators the third one in time is junior to the second, and so on – can use the water remaining after the senior appropriator has received his original allotment, for their own beneficial purposes provided that they do not impinge on the rights of more senior users. Beneficial use is commonly defined as agricultural, industrial or household use. See e.g., Montana v. Wyoming, supra note 1 at 131 S. Ct. 1772.
As is typical west of the 100th meridian, the doctrine of appropriation has governed water rights in [the West] . . . As relevant here, the doctrine provides that rights to water for irrigation are perfected and enforced in order of seniority, starting with the first person to divert water from a natural stream and apply it to a beneficial use (or to begin such a project, if diligently completed) [citations omitted] . . . “Priority of appropriation for beneficial uses shall give the better right” . . . The scope of the right is limited by the concept of “beneficial use.” That concept restricts a farmer “to the amount of water that is necessary to irrigate his land by making a reasonable use of the water.” [Citation omitted].
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