The Unbearable Cost of Skipping the Check: Property Rights, Takings Compensation & Ecological Protection in the Western Water Law Context

Abstract

Western-state non-riparian water-law regimes remain legally vital and highly useful in the age of increased scarcity and ecological concern. Claims that the property rights central to these regimes can be revoked without Fifth-Amendment takings implications - as a result of applying various doctrines, or of limitations inherent in the rights as granted - are historically and legally unsound, and doctrinally unwise. Declaring water rights non-compensable would require accepting a maxim of legal interpretation that could not be limited to the water-rights (or even property-rights) context, and would render all constitutional guarantees liable to negation without constitutional process. Moreover, such a move would not serve the ecological-protection, social-justice or efficient-use objectives claimed for it. The wiser course is for states to renounce any pretense to uncompensated-taking authority; establish ecological-use water trusts of a quasi-private nature; and arm these or co-ordinate public agencies with both eminent-domain power and the power to negotiate agreements freeing extant water rights from various alienation-and-use restrictions. This would secure for exclusive ecological use a water supply equal to fisc-backed public demand, would spur efficient planning and use of ecological waters, and would enhance the water-law regime's ability to spur efficient and wise use of waters remaining in private hands.

Keywords: water rights, property, takings, eminent domain, water trusts, environmental protection