The growing popularity of public boating and related water-based recreation is increasingly taxing the capacity of available lakes and strearns. As a result, accelerating demands have been made for public use of otherwise unavailable, "private" bodies of water. Although existing 'economic' and governmental mechanisms to expand recreational opportunities may be adequate in theory, they have failed to respond to these new demands coherently." This Article proposes that government enjoys additional power to increase the public's opportunity for water-based recreation.
The purpose of this Article is to lay a comprehensive, doctrinal foundation for broad governmental action. Simultaneously, this Article counsels a substantial degree of governmental self-restraint. Accordingly, the Article is in two parts. Part I describes a coherent theory of public recreational water rights applicable to all natural existing waters,' including those currently viewed as wholly private." Part II describes the limits of public recreational opportunities. In particular, it advocates limiting recreational rights when necessary to afford environmental protection of lakes and streams or to insure fair treatment of private landowners. Moreover, Part II suggests that government undertake affirmative planning, regulatory, and enforcement obligations when it increases public access to and use of recreational waters.
Robert Haskell Abrams, Governmental Expansion of Recreational Water Use Opportunities, 59 Or. L. Rev. 159 (1980)