The Fluid Nature of Property Rights in Water
Shelley Ross Saxer
Pepperdine University School of Law
Duke Environmental Law & Policy Forum, Vol. 21, 2010
Pepperdine University Legal Studies Research Paper No. 2010/13
In this article, Professor Saxer discusses how the understanding of private and public rights in water influences the efficient allocation of this essential resource. Property rights to surface water, ground water, and rain water are explored and evaluated using the traditional comparison to the land-based “bundle of rights” metaphor. However, Professor Saxer concludes that this metaphor is inappropriate when applied to a resource such as water, which is constantly changing in form, quantity, and location and is difficult to exclusively possess. Rather, she argues that water rights should be viewed as a communal resource subject to state ownership under the public trust doctrine, with private rights allocated through government contracts granting revocable licenses to use.
Number of Pages in PDF File: 64
Keywords: water, public, private, rights, surface water, ground water, rain water, bundle of rights, exclusive, possession, communal, resource, state, ownership, public trust doctrine, government, contract, revocable, license
Date posted: July 9, 2010
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