A Conversation about Takings and Water Rights
Leshy, John D., Texas Law Review
Dramatis Personae (in order of appearance):
Faith is a farmer in California who receives water from a project operated by the Bureau of Reclamation (BOR), an agency of the U.S. government. Her 320-acre farm was established by her parents 40 years ago, on arid land they bought in anticipation of the federal government's building that water project to capture, store, and deliver water to irrigate the farm and others like it. For most of the last four decades, in years of normal and wet precipitation, Faith has received 1600 acre-feet of water to irrigate cotton. In drought years, she has received less, and in a couple of extremely dry years she has received no water. Over the most recent several years, however, the government has taken steps, mandated by a suite of federal and state laws (most prominently, the federal Endangered Species Act),1 to restore some semblance of aquatic health to the river system that supplies water to Faith and other farmers. These steps have led the BOR to interrupt delivery of water to Faith more often than previously in years of less-than-normal precipitation. Faith has filed a claim for compensation. This conversation assumes that Faith can claim a legal interest in a surface water right under the California state law of prior appropriation for the water used to irrigate her farmland.2
Frank /5 a government lawyer representing the project that delivers water to Faith.
Rodger is Faith's lawyer.
I. The Nature of Private Property Rights in Water
A. Conflicts Between Appropriative and Riparian Water Rights
Faith: I believe in a healthy environment, and I'm all for protecting fish. But when the government takes my water to do that, I want to be paid. The Constitution protects property like my water right from governmental confiscation. I'm not asking for special treatment here.
Frank: Let me start by saying, Faith, that I agree-water rights are a form of property. But not all property is the same. Property rights can attach to things as intangible as stocks and patents and to things as tangible as furniture and land. The degree to which the Constitution protects property rights against governmental action varies a great deal, depending on, among other things, the nature of the property right involved.
Faith: Are you suggesting my water right is not genuine property?
Frank: Your water right is property, but it's a very peculiar kind of property. Your water right does not give you an absolute entitlement to a fixed amount of water every year. It is much more limited than that. The most obvious limit is, of course, that Mother Nature must make the water available. As you well know, in dry years you may get nothing because no water may be available.
But besides nature's limits, the law qualifies the very character of your property right in some important ways. It is not an absolute right by any means. In fact, the law affords your water right little or no protection from certain kinds of actions by the government or by private parties. For example, in California, as in most states, there are actually several different types of water rights. Looking first at rights in surface water, California recognizes two kinds of water rights-prior appropriation (the right you have) and riparian rights.3
Riparian rights are much different from prior appropriation rights. They are not based on actual use of water, but arise merely from owning land that borders a watercourse. On the stream from which the water you use is taken, there are probably riparian landowners who have such water rights. Integrating their riparian water rights with your appropriative rights can be difficult. Indeed, the U.S. Supreme Court once observed that the task of meshing the two very different kinds of rights has "vexed [the California] judiciary for a century."4
Sometimes the rights fundamentally conflict with each other; that is, both cannot be satisfied at the same time. …