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This article explores the "waters of the state" in three parts. First, we look to what the states say for themselves about water in their constitutions and statutes. This is not intended as a comprehensive survey, but rather a thorough sampling of the diversity in how states assert themselves over territorial water. There is a tremendous range in the scope of state assertions, in terms of both hydrologic (what waters are included) and legal scope (what states can and should do with water). The diversity and distinctions turn out to be of limited importance, though, at least on the ground. Instead, as discussed in the remaining sections, the bounds of a state's interests in its territorial waters are shaped by numerous other sources and rules that don't seem to pay much attention to the state's own declarations, from the quasi-Constitutional equal footing and public trust doctrines to interpretations of Constitutional due process and jurisdiction.

Next, this article examines the rights and powers over "waters of the state" beyond simple statutory assertions. State sovereign authority over territorial water begins with the equal footing doctrine." States have a general police power to regulate water use, subject to the rational basis test and due process limitations. States also have a sovereign and quasi-sovereign interest in their waters that they can protect in state and federal courts through parens patriae." And the public trust doctrine serves a dual role of empowering states to protect navigable waters while constraining states from divesting themselves of public water resources

Finally, this article analyzes assertions that "waters of the state" amounts to state ownership of water as property. This notion is an awkward fit with the other state rights and powers over territorial water - at times it is redundant, conflicting, and fundamentally inconsistent with other sovereignty doctrines. It is also undermined by the Supreme Court's rejection of the state ownership theory of natural resources." And most fundamentally, it is at odds with the very nature of water, which cannot be reduced to what we call "property." The flow of water transcends space and time, humbling intellectual and physical attempts at ownership. Rather than trying to own water as property, states should focus on fair allocation, long-term stewardship, and cooperative sharing within the federal system.

Publication Citation

59 Nat. Resources J. 59 (2019).