Leslie Bolden | Dec. 3, 2025
(Tampa Free Press)
A legal battle over California water rights has reached the doorstep of the U.S. Supreme Court, raising a fundamental constitutional question: When the government commandeers water for environmental reasons, is it merely regulating a resource or physically seizing private property?
The Liberty Justice Center filed an amicus brief last week in the case of United Water Conservation District v. United States, asking the high court to clarify the boundaries of the Fifth Amendment. The brief argues that diverting water specifically for government use should be classified as a “physical taking,” a designation that would mandate just compensation for property owners.
The dispute originated in 2023 involving the United Water Conservation District (UWCD) in California. Under state law, the UWCD holds a property right to divert and use a set amount of river water. However, the federal government stepped in to divert a significant portion of that flow downstream to facilitate fish migration.
A lower court previously ruled that the federal action did not constitute a physical seizure because authorities did not completely cut off the UWCD’s supply or demand the return of water already used. Instead, the court labeled it a “regulatory taking.”
This legal distinction is critical for property owners. A physical taking generally requires automatic compensation under the Constitution. In contrast, a regulatory taking triggers a complex multi-part test involving the regulation’s economic impact and the government’s intent—a much higher bar for owners seeking payment.
“There’s no greater intrusion on private property rights than the government literally physically taking the property,” said Reilly Stephens, senior counsel at the Liberty Justice Center. “We hope the court clarifies that, where the government engages in physical appropriation, that is a taking under the law requiring just compensation.”+
The Liberty Justice Center argues that the lower court’s decision dangerously blurs the line between regulation and appropriation. By treating the physical diversion of water as a regulatory issue, the brief contends that the court has forced property owners to prove severe economic harm just to protect what is already theirs.
If the Supreme Court declines to intervene, the Liberty Justice Center warns that the precedent could leave property owners across the country vulnerable to government seizure of assets without guaranteed compensation.
To read this article on the source website click here.
To read this Amicus Brief and more about this case click here.