The ongoing drought across much of Texas underscores the competing demands on a limited resource. It also puts a fundamental legal question into focus: How should courts balance protections for private water rights with government efforts to manage water for the public?

In “Taking Water and the Dangers of Federal Property,” published in the George Mason Law Review, Frances Williamson examines how courts should define the water rights at stake in constitutional takings claims. She argues that courts should look to state-specific law, preserving the legal distinctions that reflect local water conditions and shape how states respond to scarcity.

Abstract:

Recent events have highlighted the value of water. Drought plagues the western United States, and water management has gained the current administration’s attention. Water is a resource of great public concern. But it is also a form of private property. With reservoir levels dropping, how should we evaluate government efforts to regulate the use of water as a form of property?

The Constitution’s Takings Clause guarantees that the government will not take an individual’s property without just compensation. The Roberts Court is attuned to state authority, but in takings law, the Court seems headed in a different direction. While a close read of Supreme Court cases may provide more questions than answers, this paper will only engage with one: How should courts define which types of property can be taken?

Read the entire paper here.