Property Without Possession: Defining Private Instream Rights in Western Water Law

Abstract

Since the early 1970s most western states have made a concerted effort to either maintain or augment the quantities of water flowing in their rivers and streams. Environmental interest groups, recreation industries, and those with aesthetic or other interests in increasing the amount of water in these natural channels have provided widespread support for these efforts, yet there has been little success in impacting instream flows in any material way. A promising solution is the privatization of rights to instream flows, such that private entities or individuals could purchase and enforce instream water rights; and instream uses of water could compete in the market for water against traditional consumptive uses. However, attempts by states to implement privately held instream rights have also been unsuccessful thus far. In this paper, I propose that the definition of water rights established by the early western settlers in the mid-nineteenth century is a primary reason for the present day inefficiency and inability to accommodate private ownership of non-consumptive uses of water.