Comment by Brandon M. Sprague
This Comment compares Louisiana property law on water bodies with that of three civil law jurisdictions around the world—Chile, Ecuador, and the Netherlands—in order to suggest reforms to Louisiana’s system that will help its coastal restoration efforts. Louisiana is rapidly losing land due to factors like erosion, subsidence, and sea level rise. Despite Louisiana’s desperate need for coastal restoration, the State has completed relatively few restoration projects, in part because many private landowners have refused to work with the State on the restoration of eroded wetlands on their property. This conflict ultimately stems from the Louisiana civil law property tradition and its classification of many water bodies as State-owned public things. When lands erode and become covered by public waters owned by the State, these lands also become public things by operation of law, and they generally do not revert to their previous private owners when they reemerge through restoration projects. Many private landowners would rather allow their lands to continue to erode than invite the State in to restore the property and potentially claim ownership of their eroded lands.
In order to save its coast, the State must adapt these principles, largely unchanged from their Roman counterparts, to its modern needs. In fact, since 2014, the Louisiana State Law Institute has been working on reforms in a new comprehensive Water Code. To help suggest reforms that best fit with Louisiana’s civil law tradition, this Comment compares Louisiana law on water bodies with that of three civil law jurisdictions, analyzing relevant property and environmental law. This Comment first examines Louisiana property law on water bodies and the problems it creates. It then examines the law on water bodies of three other civil law jurisdictions—Chile, Ecuador, and the Netherlands. Chile has led the way in privatizing the field of water bodies, permitting the private ownership of the rights of use of public waters. Ecuador has prioritized the public interest in water bodies along with conservation, going so far as to give rights to nature itself. The Netherlands has similarly prioritized conservation but has a more flexible classification system that allows it to work with private parties to balance the public and private interests. Comparing these systems, this Comment examines their pros and cons in order to best recommend how to reform the law on water bodies in order to better facilitate coastal restoration.
About the Author
Brandon M. Sprague. J.D. candidate 2021, Tulane University Law School; B.A. 2019, Tulane University.
Citation
95 Tul. L. Rev. 143 (2020)