Got Guts? The Iconic Streams of the U.S. Virgin Islands and the Law’s Ephemeral Edge

The legal status of “guts” — the ephemeral streams of the U.S. Virgin Islands that typically flow only after rainfall — is uncertain. Furthermore, it is unclear what, if any, property interest the Government of the Virgin Islands, and the public, have in these watercourses. This uncertainty stems from the non-navigable nature of guts, and is compounded by the Virgin Islands’ unique legal system, a legal system that recognizes at least some Danish law from its colonial past, and has seemingly inconsistent provisions purporting to confer legal and regulatory interests in these guts to the Government of the Virgin Islands. The uncertain legal status of guts, coupled with the Territory’s lack of a cohesive watercourse management regime, has caused guts to remain largely unmanaged and environmentally threatened. Land use changes, poorly sited development, pollution, illegal clearing, and other practices threaten the health of these guts. This Article first examines the legal status of guts in the Virgin Islands within the Territory’s existing laws and legal precedents. Next, it looks to other jurisdictions for guidance regarding best practices for regulating intermittent and ephemeral waterways, and methods of ensuring government access to these waterways for better management and protection. Finally, it proposes certain proprietary, regulatory, and management policy measures that could be implemented within this legal framework to better manage and protect guts for the entire Territory