Eastern States Water Withdrawal and Allocation: The Impact of the Takings Clause

Water rights conflicts increasingly find their way to the courtroom.   In the past few years, a number of court decisions and legislative actions have address water rights in the East and across the country.  A number of these cases have decided novel issues addressing whether the regulation of withdrawal and allocation of water rises to the level of a regulatory taking in some instances.   Legislative actions have most often claimed ownership of surface and groundwater by the state under the public trust doctrine.

This paper summarizes and analyzes the recent flurry of court action and legislative pronouncements on the right to use water.  Recent cases include Casitas Municipal Water District v. United States, 543 F.3d 1276 (Fed. Cir. 2008).  In Casitas, the court found that the compulsion to divert water to a fish ladder to protect and endangered species of salmon amounted to a physical invasion and, hence a categorical taking.  The Obama Administration decided not to appeal the case to the United States Supreme Court, so the ruling causes significant uncertainty as to the allowable degree of regulation of water rights in the United States.

 The Texas Supreme Court is about to hear an important case on groundwater rights in Edwards Aquifer Authority v. Day, 274 S.W.3d 742, (Tex.App.- San Antonio 2008), rehearing overruled (2008), review granted (2010).  This case will impact eastern water law since Texas uses an eastern water law regime.

 Other cases promise to impact the restrictions on withdrawal of groundwater and the allocation of groundwater in the east.  At the same time, the validity of the legislative pronouncements of state ownership will have to be determined by the courts.  This paper attempts to sort out the mixed messages and provide a cohesive view of the future of eastern states water withdrawal and allocation policy.