Environmental Water Rights: An Evolving Concept of Public Property
By Lynda L. Butler
INTRODUCTION
From the world's water-poor areas to its water-rich regions, countless conflicts have arisen over the appropriate allocation of interests in water resources. These conflicts have occurred at all levels of the political system, pitting nation against nation, state against state, and locality against locality. Although the disputes generally involve one overriding question—who has the right to use water—the legal issues involved in resolving that question span a wide range of matters. The longstanding and complex nature of the disputes thus stands as a testament to the value and importance of water resources.
Given the long history of water use conflict, it should not be surprising that man has found new grounds for dispute. Water uses generally fall into one of two main categories. The first category, out-of-stream or consumptive uses, involves those uses that require the removal or diversion of water from a watercourse to the place of use. Irrigation, stock watering, industrial water use, and residential use are examples of consumptive uses. By contrast, the second category, instream or nonconsumptive uses, does not require the removal of water and refers instead to those benefits derived from water while it is still flowing in the stream. Examples of instream uses include navigation and recreational uses, as well as maintenance of water flows for aesthetic and ecological purposes. While the traditional focus of water disputes has been on private conflicts involving competing consumptive uses, current disputes have raised new issues and are shifting the focus away from purely private matters to tensions between public and private interests. Of particular concern today are the conflicting interests of private consumptive uses and public nonconsumptive needs.
As the demand for out-of-stream uses continues to rise, the need for protection of instream uses has become increasingly apparent. The survival of many aquatic and terrestrial species depends on the instream flow, or the quantity of water flowing through a stream. An adequate level of flowing water also is required to maintain water quality and to prevent other drastic changes in the physical characteristics of watercourses. Furthermore, people require adequate instream flows for recreational and aesthetic purposes.
Despite the need for protection of instream uses, out-of-stream uses have, for the most part, prevailed in both western and eastern states. America's water allocation laws, which developed in the context of the private property system, have made few, if any, accommodations for public interests. Although government entities generally have been able to meet public consumptive needs through condemnation proceedings, innovative arrangements with water rights holders, helpful statutory modifications, or aggressive manipulation of common law principles, public nonconsumptive needs have posed serious political, economic, and philosophical problems. Recognition of nonconsumptive values raises difficult questions about our political and economic structure and about the ethical responsibilities of the citizenry.
For several decades, legal scholars and lawmakers have been exploring ways the law can recognize and promote the nonconsumptive needs of the public. In recent years, their efforts have begun to be realized as a growing number of courts and legislatures have decided to protect instream uses with a wide variety of devices. Some of these devices involve judicial interpretation or expansion of common law doctrine, while others reflect changes in statutory or administrative law. Although the variety of the protective devices might suggest otherwise, they do share one common trait: all represent an important step in the evolution of public property rights in the environmental area. Gradually the law has begun to recognize the legitimacy of public environmental water rights—that is, public interests in environmental uses of water resources. Today, through the recent judicial and legislative changes, that evolutionary process has reached the point where the public interest needs to be recognized as a property right. Although such recognition would defy our system of private property, public property rights are, in appropriate circumstances, needed as a complement to private property. Many instream water uses raise the types of concerns that both justify and necessitate public property rights.
To demonstrate the applicability of the public property concept to instream uses, this article first describes the various forms of instream protection that have developed under traditional and current law. Part I examines the relatively insignificant role of instream values under traditional water allocation systems, while Parts II and III discuss the emerging forms of judicial and legislative protection, respectively. The focus of these discussions is not to provide an exhaustive study of the various instream protection programs, but rather to identify the current status, direction, and limitations of the instream protection movement. Part IV then suggests how the public property concept would help the evolution of the public interest in environmental water uses.
From the world's water-poor areas to its water-rich regions, countless conflicts have arisen over the appropriate allocation of interests in water resources. These conflicts have occurred at all levels of the political system, pitting nation against nation, state against state, and locality against locality. Although the disputes generally involve one overriding question—who has the right to use water—the legal issues involved in resolving that question span a wide range of matters. The longstanding and complex nature of the disputes thus stands as a testament to the value and importance of water resources.
Given the long history of water use conflict, it should not be surprising that man has found new grounds for dispute. Water uses generally fall into one of two main categories. The first category, out-of-stream or consumptive uses, involves those uses that require the removal or diversion of water from a watercourse to the place of use. Irrigation, stock watering, industrial water use, and residential use are examples of consumptive uses. By contrast, the second category, instream or nonconsumptive uses, does not require the removal of water and refers instead to those benefits derived from water while it is still flowing in the stream. Examples of instream uses include navigation and recreational uses, as well as maintenance of water flows for aesthetic and ecological purposes. While the traditional focus of water disputes has been on private conflicts involving competing consumptive uses, current disputes have raised new issues and are shifting the focus away from purely private matters to tensions between public and private interests. Of particular concern today are the conflicting interests of private consumptive uses and public nonconsumptive needs.
As the demand for out-of-stream uses continues to rise, the need for protection of instream uses has become increasingly apparent. The survival of many aquatic and terrestrial species depends on the instream flow, or the quantity of water flowing through a stream. An adequate level of flowing water also is required to maintain water quality and to prevent other drastic changes in the physical characteristics of watercourses. Furthermore, people require adequate instream flows for recreational and aesthetic purposes.
Despite the need for protection of instream uses, out-of-stream uses have, for the most part, prevailed in both western and eastern states. America's water allocation laws, which developed in the context of the private property system, have made few, if any, accommodations for public interests. Although government entities generally have been able to meet public consumptive needs through condemnation proceedings, innovative arrangements with water rights holders, helpful statutory modifications, or aggressive manipulation of common law principles, public nonconsumptive needs have posed serious political, economic, and philosophical problems. Recognition of nonconsumptive values raises difficult questions about our political and economic structure and about the ethical responsibilities of the citizenry.
For several decades, legal scholars and lawmakers have been exploring ways the law can recognize and promote the nonconsumptive needs of the public. In recent years, their efforts have begun to be realized as a growing number of courts and legislatures have decided to protect instream uses with a wide variety of devices. Some of these devices involve judicial interpretation or expansion of common law doctrine, while others reflect changes in statutory or administrative law. Although the variety of the protective devices might suggest otherwise, they do share one common trait: all represent an important step in the evolution of public property rights in the environmental area. Gradually the law has begun to recognize the legitimacy of public environmental water rights—that is, public interests in environmental uses of water resources. Today, through the recent judicial and legislative changes, that evolutionary process has reached the point where the public interest needs to be recognized as a property right. Although such recognition would defy our system of private property, public property rights are, in appropriate circumstances, needed as a complement to private property. Many instream water uses raise the types of concerns that both justify and necessitate public property rights.
To demonstrate the applicability of the public property concept to instream uses, this article first describes the various forms of instream protection that have developed under traditional and current law. Part I examines the relatively insignificant role of instream values under traditional water allocation systems, while Parts II and III discuss the emerging forms of judicial and legislative protection, respectively. The focus of these discussions is not to provide an exhaustive study of the various instream protection programs, but rather to identify the current status, direction, and limitations of the instream protection movement. Part IV then suggests how the public property concept would help the evolution of the public interest in environmental water uses.
