In PUD No. I of Pend Oreille County v. Department of Ecology, the Supreme Court of Washington held that Washington State has authority under the Clean Water Act to impose a minimum stream flow requirement on a hydroelectric project seeking to amend its federal license, regardless of whether the flow requirement affects an existing water right. A water right is property protected by the U.S. Constitution's prohibition on taking without just compensation. If a state's imposition of a minimum flow requirement under the Clean Water Act restrains a project from diverting the full quantity of an existing water right, the water right holder could challenge the state's action as an unconstitutional taking. This Comment argues that courts should not analyze the constitutionality of the state action under a physical invasion or exaction analysis. Instead, courts should employ a regulatory taking analysis because the state is acting in a regulatory capacity and the regulatory takings test allows for consideration of both the complex interests inherent in a water right and the high degree of control a state exercises over the right.
Notes and Comments,
Water, Property, and the Clean Water Act,
78 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol78/iss1/9