Under the doctrine of prior appropriation, those that divert and apply water resources to a beneficial use gain a future right of use. Further, individuals may contract with the federal Bureau of Reclamation (BOR) for the delivery of federal project water. Under either method, individuals are required to use their water appropriation for a beneficial purpose to acquire and maintain their rights of use. What constitutes a beneficial purpose or a beneficial use of water resources has traditionally been defined by state law. Following some states’ legalization of marijuana, the BOR announced a new policy with regard to water use, one that prohibits the use of federal project water subject to the BOR’s regulatory authority to grow marijuana. This policy directly contradicts the historical right of the western states to define for themselves what constitutes a beneficial use of water resources. This Comment takes no position on the propriety or validity of state laws that legalize marijuana; rather, it seeks to examine the issue of state and federal power over water use as it has arisen in the context of BOR policy. Ultimately, this Comment concludes that the ability of states to define beneficial use should and likely does take precedence over the limited authority of the BOR to control federal project water.
Reclaiming the Right of Beneficial Use,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol87/iss3/5