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The focus of this Article is whether the anti-speculation doctrine in western water law poses a continuing, insuperable impediment to collaborative, market-based solutions and, if so, whether the doctrine ought to be dismantled. The Article concludes that, although the doctrine does pose an obstacle to some kinds of collaborative agreements that attempt to harness market forces for future uses through forward-looking transactions, it continues to serve an important public purpose. The anti-speculation doctrine curbs the worst potential abuses of market forces by forcing transacting parties to articulate how and when the water will be applied to actual, beneficial uses, and by providing an administrative or judicial "check" on speculative transactions that adversely affect third parties and ecological needs by depriving them of water. Moreover, exceptions for municipal planning, Indian reserved rights, and instream flow protection operate as an effective safety valve to liberate collaborative initiatives that serve important, contemporary public purposes.
Sandra B. Zellmer,
The Anti-Speculation Doctrine and Its Implication for Collaborative Water Management
, 8 Nev. L.J. 994
Available at: https://scholarship.law.umt.edu/faculty_lawreviews/156