Uncharted Waters: Can Water Rights Principles Stem the Tide of Ecosystem Services Loss?

This article will explore the ways in which we might apply aspects of the conceptual framework developed through centuries of water law to the modern need for property interests in ecosystem services.Water itself is a high-value ecosystem service, largely within the category of “provisioning” ecosystem services. We need access to water to survive, which has resulted in centuries of varying legal approaches to allocating rights to water. Although this right has traditionally been extractive, in the modern era we have developed increasing protections for in-stream benefits as well. While not uniform across jurisdictions, water law is now a highly developed field, in which rights may hinge on matters such as adjacency or beneficial use.Although we are beginning to see property interests develop in relation to a broader range of ecosystem services, the concept of more general ecosystem services rights is quite nascent, and in need of stronger definition and stability. The groundwork for exploring this need may be found in the initial article of this series, with each subsequent article considering a particular avenue for securing rights in ecosystem services. This article will consider the potential to draw upon the far more developed field of water law, specifically to determine whether it is possible to build a framework for ecosystem services rights by at least in part utilizing these approaches. Which concepts translate well to other ecosystem services, which do not, and what might the end result of this process look like? What if we could begin to protect private lands from loss of essential ecosystem services without reinventing the wheel? Drawing from water law concepts, one can see the potential for usufructuary rights in ecosystem services that are based on historic use, which adds nothing to the status quo (and thus takes nothing already in use) and only impacts future plans for destruction of natural capital.