Minnesota Law Review

Note, In Deep Water: A Common Law Solution to the Bulk Water Export Problem

An American company recently entered into a contract with the town of Sitka, Alaska to export 2.9 billion gallons of freshwater per year from the Blue Lake Reservoir to an unannounced water hub on the west coast of India. If the venture is successful, the company will become the first in the world to ship large-volume exports of water by tanker. As a result, bulk water—large-scale international shipment of water by man-made diversion—may, for the first time, be subject to international agreements, such as the North American Free Trade Agreement and the General Agreement on Tariffs and Trade. This has the potential to cause interference with the American water rights regime, where states control the allocation of water resources. The Note argues that the best remedy to solve the tension between international trade law and state regulation of water resources is the application of the public trust doctrine to the allocation of permits for international trade. The Note asserts this is the best remedy because the doctrine can override a legislative decision that a court finds is not in the best interest of the public. The public trust doctrine should be applied in this circumstance because  water is already a public good for the purposes of allocations, and bulk water sales implicate two traditional areas of concern where the doctrine has been applied. First, the doctrine has been used when a state government has the may receive a short-term economic gain that is not in the best interest of the public. Second, the doctrine has been employed in circumstances where the state government may divest its traditional authority to regulate a public resource to a foreign entity.

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