|From land trust...
While at the Rally, I was sitting in on the session entitled "Water Law as it Relates to Conservation Easements and Land Stewardship". I started thinking about the question I posted some time ago on the listserver (see responses to my question on the other message I posted today).
As the session was winding down, I was getting ready to ask a long question, based on the "ranch loses water rights to condemnation" question. But the session ran overtime and I had to catch a plane.
Now, I'd like to try this question again to see if it generates any additional thoughts. (Thanks, by the way, to all who responded to the earlier posting!)
OK, assume that a ranch, whose water supports a ranching operation and natural wetland, possesses a senior water right that has been and is being "beneficially used". A small city is approached by a developer re: a 2nd home development that includes a golf course. The developer needs water and expects the city to provide it. The city has access to no water, but
believes its best option is to condemn and sever the water right associated with the aforementioned ranch. If the city did this, would it not be essentially a violation of the doctrine of the prior appropriation? Isn't the developer merely using the city to transfer a senior water right from one private interest to another - something that they couldn't do without the public entity's power of eminent domain?
I keep going back to the fact that this sort of issue is going to keep cropping up, especially in the Southwest, and if land trusts are unable to use easements to protect ranchland/natural area water rights, then ultimately what are we protecting? I wonder if there is any organization or
firm that is willing to take this on, if and when such a case develops? Thanks in advance for your thoughts and advice.
Southeast Arizona Land Trust