Michael 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.

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