Water Rights

In a world in which ever-growing demand for water meets an essentially finite supply, it is unsurprising that rights in water have received much attention from courts and legislatures. Perhaps more surprising are the radical variety of property regimes governing this resource and the intensity of attention water rights have received in the scholarly literature. "Property" often connotes land, the classic resource of property law; yet water often serves as land's alter ego, an exemplar of the odd, the esoteric, the colorful, or the cutting-edge in property law, set against the staid familiarity of land law. This chapter briefly surveys the salient issues discussed in recent scholarship on property in water, largely revolving around the distinction between systems based on private, common, and public property in water. After questioning the utility of this classificatory scheme in practice, the chapter turns to examine theories purporting to explain why water is the subject of different property systems, normative literature as to which system of property in water is best, and the extensive empirical and historical work impacting on these theories. It also treats recent discussions of public rights in water and a human right to water, and the ways in which these issues interact with the property rights literature