Keywords: property stewardship, water rights, abstraction, Water Framework Directive, Water Act 2003
Abstract: The intersection of private rights and public responsibilities lies at the heart of both environmental and property law. This article considers this intersection in the context of debates about property ownership and notions of environmental stewardship. These form the background to considering shifts in water rights law in England and Wales and the extent to which they can be said to exhibit or exemplify a shift towards stewardship. Section 27 of the Water Act 2003 is analysed as this authorises revocation or variation of an abstraction licence without compensation in order to protect waters or aquatic flora and fauna from 'serious damage'. Because regulatory abstraction licensing is a modern overlay on the common law, but one which has protected many existing abstractors from restrictions on their rights, section 27 might be regarded as strongly indicative of a stewardship shift in water rights. However, I argue that greater attention needs to be paid to the wider context within which this provision operates before it can be deployed as an unambiguous pro-stewardship example. I suggest that a range of related regulatory, economic and interpretive factors are likely to lead, in practice, to limited direct legal intrusion on private water rights. The case of section 27 serves as a 'bottom up' example of a need for circumspection about whether any specific formal, doctrinal reform is likely to exemplify, or support, a shift towards stewardship in water or property law, and draws out some of the complex relations between public and private interests that characterise stewardship.
The intersection of private rights and public responsibilities lies at the heart of both environmental and property law. Amongst numerous examples of conflict between the two, exposing students1 to Hardin's 'The Tragedy of the Commons',2 and to its theoretical and practical shortcomings,3 is a common way in to teaching environmental law, helping to reveal the tensions both between private rights and preferences and more collective interests, and between law on the books and law in action. And recent work has argued that it is the shared, public interconnectedness of natural resource use which is a defining feature of environmental law.4
Both of these elements - the centrality of shared and public interests - are also hallmarks of the 'stewardship' notion in property. As Tarlock has argued, 'Environmental law can ... be explained as an effort to institutionalize stewardship obligations'.5 The increasing body of literature on stewardship as an organising concept for conceiving of property departs from a focus on property 'owners' and their 'rights' (a liberal approach), emphasising instead responsibilities towards others and the importance of broader public interests in land (but problematising our understanding of private and public in the process). This literature, however, has largely developed its arguments at a doctrinal level, with specific - and often environmental - developments being marshalled to argue in favour of the importance of adopting a stewardship approach or to try to explain the ways in which it can already be said to have emerged in legal doctrine.