The Property Theory of Federal Reserved Water Rights: Implications for National Wildlife Refuges

Abstract

"Federal reserved water rights stem from the evolution of property theory in water rights. Water rights are unlike many other types of property due to the types of uses, the high cost of monitoring those uses, and the variation in stream flow and supply over various temporal scales. Water resources are governed by a variety of regimes that evolve as the culture and priorities of a region change. Future decisions about water use may involve a host of competing claimants whose uses will need to be prioritized particularly in light of changes in water supply. The paper begins with the evolution of property theory in water rights, and moves into an examination of the federal reserved water rights doctrine. The Deer Flat NWR is presented as a case for determining the effectiveness of the doctrine for protecting aquatic resources, and the challenges and opportunities for incorporating other types of property regimes based on concepts such as the public trust doctrine and social goals into water rights regulation."