When Should Water Belong to the Public?

Abstract

Focusing on the tension between public values and private property rights in the area of U.S. water law, the Article focuses on a case arising from the longest drought in California’s history. The Article examines when public values espoused by the regulator should curtail the private exercise of often long-held private water rights. The Article argues that, as usufructuary water rights, water belongs to the public, which should emphatically uphold its right to regulate what happens to its resource, even when in the hands of private rights-holders, during a public emergency such as a devastating drought. Such issues have historically arisen to great contention in western states, and they are likely to continue to do so for the foreseeable future.

Keywords: Water Law, Climate Change, California, Prior Appropriation, Usufruct, Roman Water Law, Public, Private, Public Trust, Navigation Servitude, Navigable Waters, Police Power