Craig Anthony Arnold
Water, privatization, property, commodification, watersheds, human rights, national security, public rights, stewardship, fiduciary, public utilities, sustainability, environment, ecology, equity, public trust, state ownership, usufructuary, conservation
This article examines 3 aspects of water privatization in the United States: 1) the privatization of public water services and systems; 2) the dominance of private property rights in water amid a complex legal regime of mixed public and private characteristics of water; and 3) the cultural framing of water as a consumer commodity. These trends raise significant humanrights issues, not unlike global debates over humanrights to water, and also critical national security issues related to conflict and scarcity, foreign control over domestic water supplies, and vulnerability to terrorism. More importantly, though, the article critiques the sustainability of the privatization and commodification of water in terms of the ecological, temporal, geographic, socio-ethical, policy, and economic integrity and sustainability of waters and watersheds.
The article concludes that humanrights legal theories lack the capacity to resolve concerns about meeting the human need for water. Likewise, national security policies are too limited to address larger issues of long-term water governance to ensure secure, stable, and sustainable water supplies for the public.
The article proposes an alternative concept: public stewardship of water. This concept is based on the public ownership and control of water (i.e., the state ownership doctrine), subject to private property interests in water that are usufructuary in nature and regulated by the government for the public interest. These property interests in water should be seen as part of a “web of interests” defined by the unique and multi-faceted characteristics of water, including its role in sustaining all life. However, the government should be held to 6 fiduciary duties with respect to all water resources, moving beyond the traditional public trust doctrine: 1) the duty of security; 2) the duty of conservation; 3) the duty of sustainability; 4) the duty of equity; 5) the duty of investment; and 6) the duty of long-range, place-based planning. All stakeholders, including the public, should share in the government’s responsibility for acting on these duties.
(2009) 33 William & Mary Environmental Law and Policy Review 785