Drought and Public Necessity: Can A Common-Law Stick Increase Flexibility In Western Water Law?

Drought is a recurring—and likely increasing—challenge to water rights administration in western states under the prior appropriation doctrine, where “first in time” senior rights are often allocated to non-survival uses such as commercial agriculture, rather than to drinking water supply for cities. While states and localities facing severe drought have used a variety of voluntary programs to reallocate water, these programs by their very nature cannot guarantee that water will in fact be redistributed to the uses that best promote public health and community survival. In addition, pure market solutions run the risk that “survival water” will become too expensive to buy because prices naturally rise—sometimes dramatically—during shortages. Using the example of the Brazos River drought of 2010 to 2013, this Article explores the potential role of the common law doctrine of public necessity in reallocating water during extreme drought. Building on my earlier work examining the potential use of public necessity in climate change adaptation for water law and coasts, this Article nevertheless focuses more narrowly on the specific issue of water crisis—the moment during an extreme drought when cities and power plants face a real inability to supply the general public with drinking water and electricity. At that moment, and assuming that cities have otherwise reasonably prepared for drought, the doctrine of public necessity should allow state water agencies in western states to reallocate water away from senior water rights holders whose water rights are for non-survival uses