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The issue of whether water is or should be characterized as property under the law raises considerable controversy. In the western United States, water is typically viewed as a form of property, while in the east it is not. Whether water should be treated as property has been the subject of an extensive body of scholarship. Proponents argue that establishing legally protected, secure private property rights encourages maximum utilization of resources. Also, exclusivity and surety of possession can foster wise investment of labor and stewardship. Conversely, the absence of legally protected interests in property ownership can result in a “tragedy of the commons,” where a public resource is plundered as each selfish (yet economically rational) actor takes steps to promote self-interest with little regard for externalities that deplete or even destroy the resource.
Opponents assert that water is an essential resource that should not be treated as a commodity. They advocate public ownership and regulation of water resources, arguing that water is unique and therefore should not be subject to profit-motivated management like other natural resources, such as land or minerals, and personal items, such as teacups or jewelry. Their arguments are bolstered with evidence that jurisdictions that recognize private property rights in water, as in the western United States, have not necessarily encouraged conservation but rather have created incentives to overuse the resource.
This memorandum analyzes whether water is treated as property under current American legal systems, with an emphasis on Nebraska law. It also considers the implications of treating water as property. The analysis focuses on surface