Copyright (c) 2012 Environmental Law
ARTICLE: DEFINING RIPARIAN RIGHTS AS "PROPERTY" THROUGH TAKINGS LITIGATION: IS THERE A PROPERTY RIGHT TO ENVIRONMENTAL QUALITY?
42 Envtl. L. 115
Robin Kundis Craig*
Robin Kundis Craig*
As Carol Rose has observed, "Most of us think that as a nation, the United States is and always has been very conscious of property... . Almost from its inception, our Constitution has included a clause protecting property against takings for public purposes without compensation ... ." 1 Nevertheless, the Constitution's prohibitions on governments taking private property without compensation have always operated most clearly in the context of the relatively well-defined ownership interests - and especially fee simple interests - in real property. In contrast, arguments that constitutional takings prohibitions should apply to water and water rights often give courts substantial pause.
Part of the difficulty is that water rights are generally use rights rather than ownership rights. 2 This usufructory status makes it more difficult to identify government actions that can actually "take" the right 3 - especially when the water right can be transferred to different uses. 4 Another difficulty in applying takings jurisprudence to water rights is that water rights vary considerably more from state to state - and sometimes, even within states - than real property rights do. Water rights differ depending on whether surface water or groundwater is involved and on whether the authorizing state is a riparian, prior appropriation, or other jurisdiction. With regard to surface water, for example, common law riparianism assigned the rights to use water from a particular source to the real property owners along the bank of a river, stream, or lake. 5 These ...
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