Rainwater Harvesting in Colorado and the Quandary of a Taking

Although rainwater harvesting would appear to be a win-win solution to the problem of developing new sources of water, implementing rainwater harvesting in the American West has been fraught with tensions that have pitted rural farmers and other agricultural interests against urban and suburban homeowners. The water law of the western states is based on the prior appropriation doctrine, which creates a “first in time, first in right” system of water rights tied to when a user diverts surface water for beneficial use. Since water rights are property rights, state statutes and regulations that “go too far” in affecting them risk giving senior appropriators a takings claim. Based on the nature of rainwater harvesting and judicial interpretations of federal and state constitutional takings clauses, the most likely claims by downstream agricultural irrigators in the West are that state statutes authorizing rainwater harvesting are per se physical takings. Such takings require compensation, even though they do not result in the total loss of the right to use water or have a minimal economic impact on a senior appropriator. To avoid a taking, state legislatures need to draft these statutes in ways that take advantage of how existing state laws implement the prior appropriation doctrine. Colorado’s most recent rainwater harvesting statute leverages how the no-injury requirement placed on junior appropriators ultimately limits the scope of the senior appropriators’ water rights and avoids a taking

Water Markets as a Tragedy of the Anticommons

In much of the American West water shortages are becoming an important concern. With increasing demands for water for municipal, industrial, and environmental uses, transfers of water from the currently predominant agricultural uses to these other uses should produce economic gains. Even though most commodity markets respond rapidly to price differentials and reduce those differentials over time, water transfers out of agriculture into higher value uses are not occurring very rapidly. The existence of multiple rights of exclusion unbundled from the rights of use under the prior appropriation doctrine in the American West creates an anticommons that has impeded water transactions. This article explains the tragedy of the anticommons, describes the various rights of exclusion that create an anticommons in western water markets, and concludes with case studies that illustrate the difficulty of water transfers

Bringing the Appellate Court to the Classroom

This article describes the successful implementation of a classroom simulation exercise involving written and oral arguments before an intermediary court of appeals or a supreme court. The article first explains the mechanics of conducting an appellate moot court exercise and the resources available to professors and students. The article then discusses the pedagogical benefits of conducting an appellate moot court exercise

Rainwater Harvesting in Colorado and the Quandary of a Taking

Although rainwater harvesting would appear to be a win-win solution to the problem of developing new sources of water, implementing rainwater harvesting in the American West has been fraught with tensions that have pitted rural farmers and other agricultural interests against urban and suburban homeowners. The water law of the western states is based on the prior appropriation doctrine, which creates a “first in time, first in right” system of water rights tied to when a user diverts surface water for beneficial use. Since water rights are property rights, state statutes and regulations that “go too far” in affecting them risk giving senior appropriators a takings claim. Based on the nature of rainwater harvesting and judicial interpretations of federal and state constitutional takings clauses, the most likely claims by downstream agricultural irrigators in the West are that state statutes authorizing rainwater harvesting are per se physical takings. Such takings require compensation, even though they do not result in the total loss of the right to use water or have a minimal economic impact on a senior appropriator. To avoid a taking, state legislatures need to draft these statutes in ways that take advantage of how existing state laws implement the prior appropriation doctrine. Colorado’s most recent rainwater harvesting statute leverages how the no-injury requirement placed on junior appropriators ultimately limits the scope of the senior appropriators’ water rights and avoids a taking

Irrigation Institutions in the American West

[No abstract

Irrigation Institutions in the American West

[No abstract

Institutional Path Dependence in Climate Adaptation: Coman's "Some Unsettled Problems of Irrigation"

Katharine Coman's "Some Unsettled Problems of Irrigation," published in March 1911 in the first issue of the American Economic Review , addressed issues of water supply, rights, and organization. These same issues have relevance today, in the face of growing concern about the availability of fresh water worldwide. The central point of this article is that appropriative water rights and irrigation districts that emerged in the American West in the late nineteenth and early twentieth centuries in response to aridity to facilitate agricultural water delivery, use, and trade raise the transaction costs today of water markets. These markets are vital for smooth reallocation of water to higher-valued uses elsewhere in the economy and for flexible response to greater hydrological uncertainty. This institutional path dependence illustrates how past arrangements to meet conditions of the time constrain contemporary economic opportunities. They cannot be easily significantly modified or replaced ex post. (JEL N51, Q15, Q25, Q54)