Does the Despoiler of Water Have a Proprietary Right in the Commingled Product? Implications for Property Law and Criminal Procedure

This paper considers who owns wastewater. Our view is that the common law notions of proprietary rights are incapable of providing the nuanced solution necessary to this question. This solution must encompass the public interest in maintaining a viable and safe waste disposal system. But equally the solution must encompass two new uses of wastewater. First, as water authorities increasingly extract a value from the consumer in respect of wastewater it has become an economic resource to which each member of the public is an important contributor. Second, wastewater is emerging as a potential source of intelligence for criminal investigators. We suggest that proprietary rights do not provide the solution to the dilemma of the ownership of wastewater. Further, while relevant, they do not mark out the boundaries of state obligations or powers in sampling wastewater for the purpose of criminal investigations. The law in this context is uncertain. Potentially it provides few protections to citizens’ privacy interests. This places the onus fairly on legislatures to engage with these issues and construct policies and laws that achieve an appropriate balance between the interests of law enforcement agents and those of the citizenry.