By

J. Craig Smith

Understandably, water rights are very important to the water users who hold them. Water rights are also very valuable. In recent years, water rights have traded for $45,000 per acre foot in the New Harmony area between Cedar City and St. George, $15,000 per acre foot in the Erda area in Tooele County and $6,000 per acre foot in rural areas such as Beaver and Sanpete Counties. More importantly, for those who own both land and water, without water their land would be nearly valueless.

In light of water's importance and value, it is likely surprising to many that a number of articles have recently appeared in prestigious legal journals arguing that water, unlike land, cannot be owned and the holding of a water right should not be a protected private property right which cannot be taken away without just compensation guaranteed under both the United States and Utah Constitutions. For example, in the Fall 2010 edition of the Duke Environmental Law and Policy Forum, Professor Shelley Ross Saxer of Pepperdine University School of Law, argues in her article, "The Fluid Nature of Property Rights in Water," that water rights should be re-categorized as "contract rights or licensing rights, revocable by the government for the public good" (pg. 52-3). In other words, a water right could be diminished or taken away completely without compensation if the government decided that a greater need for water existed elsewhere. Professor Saxer is not alone in urging that ownership of this critical public resource should not rise to the level of a protected private property right. Other legal scholars have reached similar conclusions. See, for example, "Unbundling Property in Water" in the Alabama Law Review, Vol. 59:3 679 2008.

The basis for this emerging school of thought is that unlike land, water is transitory and not fixed and the water itself cannot be owned by a private individual or entity. All that can be owned is the right to use water, which is highly regulated and subject to loss through nonuse. For example, under Utah law, "All waters in this state, whether above or underground, are hereby declared to be property of the public, subject to the existing rights to the use thereof." Utah Code Ann. �73-1-1. While Utah is among, if not the leading state in protecting property rights in water rights, this concept of public ownership coupled with a legal doctrine known as the "public trust doctrine," provides a plausible legal basis to not recognize private property rights in water.

The public trust doctrine has its origins in English common law, but has been recognized by the United States Supreme Court to classify waterways and land under waterways as held in trust for the public and not subject to sale or transfer by the government to private ownership. In fact, attempts to so transfer such waterways and land are void in violation of public policy as such are needed by the public in perpetuity.

In water rights, the California Supreme Court relied on the public trust doctrine to prohibit the draining of Mono Lake by those holding water rights by which they could draw down the level of the lake. See National Audubon Society v. Superior Court of Alpine County,658 P2d 709 (Cal. 1983), commonly referred to as the "Mono Lake case." Closer to home in Colorado, two ballot initiatives will be voted on this fall. These initiatives #3 and #45 respectively state:

            "An amendment to the Colorado constitution concerning the public's rights in the water of natural streams, and, in connection therewith, making public ownership of such water legally superior to water rights, contracts, and property law; granting unrestricted public access along and use of natural streams and their stream banks up to the naturally wetted high water mark; prohibiting the state from transferring its water rights; allowing the state government to manage others' water rights, while requiring state government to act as steward of and to protect, enforce, and implement public ownership of water; and allowing any Colorado citizen to sue to enforce the amendment."

"An amendment to the Colorado constitution concerning public control of water, and, in connection therewith, allowing appropriative water rights to be limited or curtailed by prohibiting any use of water that would irreparably harm the public ownership interest in water; expanding the right to appropriate water for beneficial use to all water within Colorado, including nontributary groundwater and not limited to unappropriated water, subject to the public ownership interest; requiring water users to return water unimpaired after use to the public so as to protect the natural environment and the use and enjoyment of water by the public; requiring state government to act as steward of and to protect, enforce, and implement the public ownership interest; and allowing any Colorado citizen to sue to enforce the amendment."

While Colorado is not Utah and articles in law journals are not binding and do not carry the force of law, there is obviously a trend. Where this trend will go is not known. Perhaps it is simply the "flavor of the month" and will soon pass. Perhaps it is the shape of things to come. In any event, a protected private property right in a water right is not a given and water right holders should keep this in mind as water public policy is debated and laws are made.