This article on the meaning of conservation, offered in honor of the retirement of Professor Richard Harnsberger of the University of Nebraska College of Law, traces the changing meaning of the term from the rise of irrigation through the conservation era to the present and examines the way in which western water law both complements and frustrates efforts to equate conservation with allocative efficiency. Professor Harnsberger is a nationally recognized water law scholar. Conservation is a fitting subject for an article honoring this respected scholar. His work on the condemnation of water rights is definitive, and much of his scholarship has concerned the necessity to conserve Nebraska's most valuable and over-used water resource, groundwater. Part I of this article examines the law of prior appropriation that developed before what we now refer to as the "conservation era." The thesis of Part I is that the law of prior appropriation has always subordinated efficiency principles to distributional ones, and that this nineteenth-century legacy still makes it difficult to incorporate efficiency principles into the law. Part II of the Article explores the different meanings of water conservation from the progressive era to the present and contrasts these meanings with the concepts of resource conservation and allocation efficiency used by welfare economists. The purpose of this exercise is to show that historically the conservation of water resources has been equated with storage and distribution projects rather than with the principle of equating marginal uses urged by welfare economists. Now, however, the welfare economists' historic criticisms of water resources allocation are coming to control, over vigorous dissent, the debate about the future of western waters. Part III examines existing conservation scenarios, with emphasis on efforts to reallocate water through water markets, and discusses changes in the doctrine of prior appropriation that can facilitate the operation of water markets.
A. Dan Tarlock,
The Changing Meaning of Water Conservation in the West,
66 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol66/iss1/6