Utah Law Review
Mark Squillace, Restoring the Public Interest in Western Water Law, 2020 Utah L. Rev. 627, available at https://scholar.law.colorado.edu/articles/1286/.
American Western states and virtually every country and state with positive water resources law are in perfect agreement about the wisdom of treating their water resources as public property. Not surprisingly, this has led most Western states to articulate a goal of managing these resources in the public interest. But the meaning of the term “public interest,” especially in the context of water resources management, is far from clear. This Article strives to bring clarity to that issue. It begins by exploring three theoretical approaches that might be used for defining the public interest in water resources law before urging an approach that prioritizes communal values. It then calls on each state to articulate its own, objective definition of the public interest—one that can serve as a meaningful legal standard. Included in this call to action is an outline of a public, deliberative process that states might use to formulate such a definition. This is followed by an investigation of the current attitudes of Western states toward the public interest standard, which includes a survey of whether and how a public interest review is incorporated into each state’s administration of water rights. The survey reveals that most Western states routinely fail to meet their obligation to consider the public interest in water rights administration, despite unambiguous public interest mandates. I conclude by recommending changes to existing water resource management regimes that will help ensure accounting for public values.
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