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“New” Public Western Water Rights: Appropriation For Instream Flow Maintenance

A. Dan Tarlock, Water Acquisition for Mineral Development (1978)

In the Far West a water right is based on the use of water to satisfy basic human needs or to produce goods and services valued in the market.1 Prior appropriation has always been a relatively utilitarian doctrine for the mission of regional settlement and development mandated an attempt to promote maximum utilization of water resources. This goal has been accomplished by according security to priority, limiting speculative claims, promoting widespread access to the resource, and prohibiting arguable wasteful uses, although maximum utilization of water has sometimes given way to distributional goals. For example, to achieve a fair distribution of right inefficient means of use have been protected.2

To promote the maximum use of water, the law of prior appropriation has consistently purged western water law of riparian elements. It was the tension between utilitarian and non-utilitarian principles in the common law which led the courts to reject riparian rights as suited to the West. Specifically, the recognition of rights to the flow of the stream apart from a consumptive use3 and the confinement of rights to the ownership of land along a stream were thought to be detrimental to the development of this region. In the famous case of Schodde v. Twin Falls Water Co.,4 the Supreme Court rejected the claim that an appropriation included a right to the flow separate from the