As a standard for government decisionmaking, the obligation to act in the public interest is pervasive. To take just one well-known American example, the Federal Communications Act of 1934 requires the Federal Communications Commission to find that that “the public interest, convenience, and necessity would be served” before it can issue or renew a broadcast license. Not surprisingly, protecting the public interest is also a common requirement for allocating and managing water resources. The American Society of Engineers Model Water Code, for example, requires that private water use applications be approved only if “reasonable” – defined as, among other things, consistent with the public interest.
Despite its ubiquity as a public law standard, what it means to manage a resource in the public interest is far from clear. And the problem is arguably of particular importance for a common pool resource like water.
This paper explores the role of the public interest in managing water. It begins by considering three possible theoretical approaches for analyzing the public interest. The first employs an economic or utilitarian lens that views the public interest as a tool for promoting decisions that either maximize wealth or perhaps, afford “the greatest good to the greatest number in the long run.” The second approach looks at pluralism, which seeks to aggregate the individual preferences of interested parties and filter those views through a political or democratic process. This category majoritarian views as determined either by popular vote or the vote of elected representatives. A third approach and the one advocated in this paper views the public interest as solely reflective of shared communal and societal values. The key to this approach is recognizing that public interests are distinct from private interests. It describes the communal aspect of the public interest in normative terms.
The paper draws on the work of Hannah Arendt, Richard Flathman and others to support a view of the public interest that focuses on communal values. In the context of water, a communal view of the public interest might establish protected baselines for such values as minimum stream flows, water quality standards, and ecological health standards. Private rights and uses would be allowed under this system but only after the primary public interests are protected. While the public interest is inherently dynamic and must be sufficiently flexible to change as values change and as new information becomes available, its unwavering focus must remain on protecting core communal values.
After establishing a communal values framework for the public interest, the paper turns to an appropriate process for defining the term. Here the paper relies on the work of John Rawls, Cass Sunstein, and others to advocate a civic republican approach, asking that interested parties set aside their personal preferences and work toward a definition that reflects communal values.
The paper concludes with observations as to how different jurisdictions employ the public interest framework in managing water resources and how well it conforms to the proposed model. Reforms that aim to bring state policies more in line with the model outline here are also considered.