As a life long resident of western USA, water through formal education was pronounced to be “owned” by those strong enough to ward off anyone from attempting to take it. On the other hand, my grandfather & my Dad, believed that – water – was part of the commons a notion which i believe today is being given increased consideration.

As long as “we” choose only to see – water – as a commodity, something to be owned, controlled, manipulated selectively for the benefit of a few often at the expense of the majority our solutions to our water dilemma must be waged pursuant to the articles of war. To the victor belong the spoils.

Respectfully,

Water has been considered publicly owned by most societies, at least those who embrace notions of ownership, for 2000 years. The transfer of water from “public” to “private” by the sovereign state that owns the water requires an express authorization by the government, typically by legislative action or in the case of dictatorship or other forms of government an equivalent action that promotes the health, safety, and general welfare — i.e. some public purpose.

However, the sovereign ownership of water, where it falls and/or flows, is inherently subject to the use of the water by others – either an overriding public or private use within the sovereign jurisdiction or by a jurisdiction or its users who are downstream.

In the first instance, notions like the public trust doctrine operate as a limit on private exploitation on use within a jurisdiction that impairs the public interest in the water or harms the water.

In the second instance, notions like riparianism, reasonable use, allocation, or appropriation and absolute capture come into play. These are use rules between private and/or public users on a flowing stream or on a the surface water of a lake with multiple jurisdictions bordering them. These uses are often sorted by principles of protecting the integrity of flows and levels from headwaters to the mouth of a river or protecting the levels of a lake, because it is viewed as a commons of sorts, and the commons, no matter what the use is to be protected. Of course, this is given lip service in most jurisdictions, except in varying degrees riparian law systems in the Eastern U.S.

Hence, reasonable use and/or allocation with principles of harm, beneficial use, and balancing of interests come into play with most use analysis or decisions over water disputes. This, of course, must be considered not only in the context of use, but in rights to own, sell, or export water beyond what the stream or lake does naturally.

In this latter instance, the use of balancing, reasonable use, and allocation actually involve transfer or diversion and ownership decisions. In these cases, it is critical to understand this, for that is where a sovereign jurisdiction can refuse to shift ownership of its rights or ownership in the water as a sovereign state or as public. Subject to the use rules for those jurisdictions who share a river or lake in common, any demand for transfer beyond these rules would require explicit and valid legislative or other action by the jurisdiction from which the water is proposed to be withdrawn or transferred. It is at this point, where states like Georgia or the Great Lakes states in the U.S. under the Great Lakes Compact or public trust doctrine can refuse to allow private ownership, control, and diversion or export without claim on their right to refuse to do so by any other state or person, so long as the refusal is applied equally to those within and without the jurisdiction. E.g., a ban on private control, ownership, and sale of water in containers can be sustained as long as it applies to everyone inside and outside the state or watershed in question.

In summary, I would suggest there are two interrelated tiers of analysis. The first, the fact of public ownership and extent of public trust; the second, the use subject to public ownership and public trust or, inversely, the public ownership and trust tempered by the rights of others who use a stream, river, or lake or other water body based on shared rights in a common watershed or basin.
Of course, any water use that would involve diversion or export out of a common watershed or basin, shared by persons or states, is a different matter and would in my view be subject to express consent consistent with public trust and use rules on the part of all affected jurisdictions in the watershed or basin.