Nisheet Dabadge (Nishu Dabadge) -Water Law Notes 6

Constitutional Takings Protections

The Fifth Amendment requires the government to pay for private property taken for public usage. Courts have found two general forms of per se taking exist when it comes to regulations, outside of purely physical takings. First, if a regulation creates physical occupation of someone’s property (inhibiting his possession, use, and enjoyment of it), a taking exists, which requires some form of compensation. Second, if a regulation diminishes in its entirety a tract’s economic benefits / productive uses, then a taking will have been considered to have taken place (requiring compensation). For this second per se taking rule, the whole tract must have been emptied of its usages, not just a part of it. Permanent physical occupation will always constitute a taking, and temporary occupation will require a case-by-case inquiry. Additional factors for consideration include whether the government foreseeably promulgated the regulation in question in order to “take” property or diminish wholly a property’s usage (or if instead the taking was unintentional, like due to flooding from a dam issue), whether the injured claimant had investment-backed expectations of the property, as well as the government’s interest in taking the land for the purposes of general welfare, safety, morals, and health. How does takings law apply to water resources under the different water law doctrines (riparianism, prior appropriation, groundwater doctrines, etc.)?

Case Studies in Legal Change

Unused riparian rights have been abolished in most hybrid riparian-prior appropriation states due to the fact that riparian rights undermine the security of appropriative water rights and simply do not mesh well with the prior appropriation system. Abolishing states include Oregon, Kansas, South Dakota, and Texas; California and Oregon have had more difficulty in abolishing unused riparian rights (with Oklahoma in 1963 passing legislation which limited riparian usage to domestic usage and pre-existing, validated beneficial uses).