PRIOR APPROPRIATION: A PERFECTLY RESILIENT SYSTEM DAN TARLOCK UNIVERSITY OF NEW MEXICO, OCTOBER 10, 2014

BENSON AND CRAIG, THE END OF SUSTAINABILITY, SOCIETY NATURAL RESOURCES (2014) Define a resilient system as one which  Can undergo change and still retain the same controls on function and structure  Is capable of self-organization  The ability to build and increase the capacity for learning an adaptation

PRIOR APPROPRIATION HAS ADAPTED TO THREE MAJOR UNANTICIPATED SHOCKS 1. The Multiple Purpose Dam 2. The Shift From Irrigated Agriculture to Urbanization 3. The Rise of Fish Power, AND CAN ADAPT TO CLIMATE CHANGE

MILLER DAM

SCHODDE V. TWIN FALLS 224 U.S. 107 (1912) After the Miller Dam wiped out his water wheel, which Schodde used to bring water from the Snake River to irrigate bench land, he argued that his prior appropriative right included the current at the time of his appropriation. The Supreme Court disagreed and purged prior appropriation of any vestiges of the riparian natural flow by holding that an appropriation had to be reasonable.

TTHE COWBOY WEST IS THE MOST URBANIZED AREA OF THE COUNTRY According to the 2010 census, 77% of New Mexicans live in urban areas (compared to 90% for Colorado and Utah and 86% for Arizona) thanks to:  THE GROWING CITIES DOCTRINE  THE DEMISE OF THE APPURTENCY DOCTRINE  STEVE REYNOLDS CONJUNTIVE MANAGEMENTOG GROUND AND SURFACE WATER IN THE RIO GRANDE

BREAKING BAD

INSTREAM FLOWS Almost western states have eliminated the physical diversion requirement to allow instream flows and recognize the “use” as beneficial. The road has been rockier in NM, but they exist. Att’y Gen. Opinion,

THE GILA

CLIMATE CHANGE: NO PROBLEM Prior appropriation is a complete risk assignment system which clearly assigns the burden of adaptation to junior right holders. Thus,  The system adapts, does not lose control and,  Can return to a pre-disruption state,  And markets (temporary or permanent transfers) can correct any inefficiencies

BUT DO WE LIKE THE RESULTS 1. Urban Areas will outcompete an economy that contributes less than one percent to the state’s GNP but uses 87% of the water 2. New Mexico’s rural economy could suffer $100 billion in direct economic loses and up to $200 billion in indirect loses. 3. This figure does include the loss off ecosystem services provided by agriculture. [Hurd and Coonrod, Climate Change and Its implications for New Mexico’s Water Resources and Economic Opportunities ]

LAND OF NOT SO MUCH ENCHANTMENT 4. Tourism produces $5.5 billion in revenues, but reduced snow pack will impact the ski industry, warmer, ash-laden rivers will impact fishing and rafting, and heat waves, more pollen and deteriorating air quality may impact craft-food tourism in Santa Fe and Albuquerque. [Repetto, New Mexico’s Rising Economic Risks From Climate Change]

THREE ADAPTATION SCENARIOS The Easy One  1. More integrated regional planning and conjunctive surface and groundwater management  2. The use of markets to reallocate water to urban and environmental uses  3. The promotion of more aggressive agricultural and urban conservation efforts

A HARDER ONE 1. The promotion more energy efficient urban settlement patterns 2. Technological fixes such as desalinization 3. Mandatory technology-forcing conservation 4. The capture of more run-off by both on and off-stream storage

THE ‘I NEVER SAID THIS SCENARIO’ 1. The reallocation of existing supplies by incorporating pro rata sharing into the law of prior appropriation during extreme” droughts 2. Federal preemption of state water law