Does Israel's public ownership of water better protect instream uses than the prior appropriation doctrine in effect in the western United States? David Shorr, faculty of law member at Tel-Aviv University, raised this question by discussing water rights in Israel and Arizona. According to Schorr the two systems of water governance might be at opposite ends of the private-public spectrum.
In Arizona, the prior appropriations doctrine allows a water user private rights to a specific amount of water by diverting water from a source to serve a beneficial use. This system has been faulted for exploiting water resources and resulting in seriously reduced river flows and the destruction of riparian habitat.
The legal situation is much different in Israel. Section 1 of the Israeli Water Act, 1959, states that “the water sources of the State are public property,” with "water sources" definded very broadly as "The springs, streams, rivers, lakes and other flowing and gathered waters, whether surface or subsurface, whether natural or controlled or built, whether flowing or standing permanently or intermittently, including drainage and sewage waters.” The state owns water in Israel and sets conditions that must be met for private sector use.
Schorr believes that the Israeli system, at least in theory, is ideally suited to protect the natural environment. Environmental woes, however, beset the country. Due to falling water tables or surface diversions nearly all the streams, including the Jordan below the Sea of Galilee, have been dried up. Some serve as sewage canals causing extensive damage to flora and fauna, The levels of the Dead Sea and the Sea of Galilee are dropping precipitously. Falling water tables in the Coastal Aquifer have caused saltwater incursions. Clearly there is a theory-practice disconnect in Israeli water law.
Schorr describes a drift from the principles of public ownership that he believes is at the root of the problem. Judicial decisions, new legislation and legislative amendments are leading the way to a nascent recognition of private rights or a quasi private property view of water. He would still characterize water in Israel as a public resource, but it is increasingly moving toward the private sphere.
He finds that the public food is generally motivating Israeli water policy less than the interest of a particular sector: agriculture. The state might officially own water, but officials are allocating the water in response to agricultural interests.
He offers a theoretical explanation for the environmental failure of public ownership. Scholars of public administration have long warned of “agency capture,” a hazard that threatens administrative and regulatory bodies. Schorr says the effects of agency capture are evident in Israeli water management.
He argues that the current situation of public ownership camouflaging private appropriation is leading to undesirable results. Although he believes that true public control would improve these conditions, he argues, seemingly paradoxically, that a commitment to a true private property regime, with the law explicitly recognizing private rights in water, would better protect public rights than the current hybrid situation.