Tuesday, April 14, 2009

This land is my land, but the rain isn’t…

In Colorado (among other western states) you do not own the water that falls out of the sky onto your own property. An interesting article in the Wall Street Journal discusses Colorado’s water law, which some lawmakers want to change, that divvies up water even before it hits the ground.

Now, this is not a new issue out west, though it sounds more than a little strange to someone (like myself) in the northeast. I was struck however by the statement in the article that water is distributed “[U]nder a seniority system based on first-come first-serve claims staked out as far back as the 1850s.” Apparently this developed in part as an outgrowth of customs developed by early prospectors (see here for a brief discussion of the appropriation system).

But, one has to question the rationality of dividing water rights according to claims dating back more than a century. Further, the idea of “first come, first serve” may be rational in certain contexts, like a gold rush, but I have serious doubts that modern water rights are one of them.


  1. "But, one has to question the rationality of dividing water rights according to claims dating back more than a century." Couldn't one make the same argument about land? Most land was patented at least that long ago.

  2. There have been many throughout history who have made that argument about land, however there are two important distinctions.

    First, land is not a dynamic resource as water is. It generally stays in one place and you are generally talking about the "same" land now that you were one hundred or two hundred years ago. Land is also static in that it is not generally "used up" as water is.

    The second distinction is that there is a long standing legal doctrine which largely prevents usage restrictions on land that go beyond the length of a human life - the Rule Against Perpetuities. This makes it difficult to restrict land to certain usages over long periods of time.

    Now, of course, there are exceptions to every rule, but by and large land is not limited in the same ways that water is in western states.

  3. Another difference is the long-standing tradition that the law disfavors restraints on alienation of land. But under most versions of prior appropriation there are very large constraints on alienation in the form of third party effects and administrative rules. Prior appropriation would do an excellent job of allocating a scarce resource if water rights were more easily transferable. But the considerable restrictions on doing so result in water rights being concentrated in inefficient uses simply because those uses were established a long time ago.

    Welcome to the water blogosphere, Alex!