Blog of law articles

(BY HUGO)

Amber Weeks presents an interesting thesis in the article «Defining the Public Interest: Administrative Narrowing and Broadening of the Public Interest in Response to the Statutory Silence of Water Codes», which is published in the Natural Resources Journal.

According to Weeks, U.S. administrative agencies responsible for water management are required to deny applications for new appropriations and transfers that are not in the public interest. Weeks' argument is summarised in the article's abstract:

«the majority of [Western U.S.] states leave the public interest undefined. This article examines contrasting administrative responses to statutory silence in Nevada and Idaho. Ultimately, this article finds that statutory silence has historically led the Nevada State Engineer to narrowly interpret the public interest as water law. In contrast, the Idaho Department of Water Resources has broadly interpreted statutory silence beyond water issues, causing the Nevada Legislature to narrow the public interest definition in 2003. Statutory silence has resulted in both uncertain interpretation of the public interest and a disconnect between the public interest and public values. Consequently, this article calls for legislatures to define the public interest through a combination of statewide public interest criteria and ongoing input from regional planning groups.»

The above is relevant in the context of Québec water law because Act 21 2009 establishing a new water allocation regime relies on the same concept of public interest to apportion resources between users.

Section 31.79 states that the responsible Minister may refuse to issue or renew a water withdrawal authorization or modify the conditions to which the authorisation is subject in order to serve the public interest.

Section 31.81 states that the term for water withdrawal authorizations is 10 years, but that the Minister may issue or renew an authorization for a shorter or longer term to serve the public interest.

Finally, under section 31.106, a prohibition against water transfers out of Québec may be lifted for emergency-response or humanitarian reasons or any other reason considered to be in the public interest.

In other words, this undefined notion of public interest will play a key role under the new Québec water allocation regime once it comes into force. Weeks' findings should be considered by the regulatory authority when developing the regulation for the implementation of the new allocation regime.