Water Rights and Environmental Damage: An Enquiry into Stewardship in the Context of Abstraction Licensing Reform in England and Wales

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.