Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates
CPR White Paper #908
31 Pages Posted: 23 Sep 2009
Date Written: September 23, 2009
After decades of unwise water policies and practices, water resources in the United States are increasingly overdrawn and overwhelmed. The warning signs of the problem may be obscured for those who see running tap water from their kitchen sink or glance cursorily at a lake. But upon closer examination, the signs are clear – wells are depleted, and river flows are low – and the projected trends are not reassuring. Demands for water resources from urban and suburban development are competing with demands for aquatic ecosystem restoration and preservation. Climate change promises to exacerbate the problem by fundamentally altering the fresh water cycle. Yet this confluence of factors provides the opportunity to take advantage of the revived environmental consciousness pulsing across the country.
Part of this consciousness involves restoring the view of public and state ownership of certain natural resources that benefit all. In legal terms, this concept is known as the public trust doctrine. This doctrine holds that certain natural resources belong to all and cannot be privately owned or controlled because of their inherent importance to each individual and society as a whole. A clear declaration of public ownership, the doctrine reaffirms the superiority of public rights over private rights for critical resources. It impresses upon states the affirmative duties of a trustee to manage these natural resources for the benefit of present and future generations and embodies key principles of environmental protection: stewardship, communal responsibility, and sustainability.
While water resources protected under the doctrine may not be monopolized by private entities, they nevertheless face great strains today from private use and misuse. Combating these abuses of shared water resources is a major task, particularly when private economic considerations are often given preference over public environmental values. But across the nation, grassroots, regional and national organizations are fighting to force state governments to protect the nation’s water resources for future generations. The purpose of this manual is to share the successes and lessons of these efforts, so that environmental organizations across the nation may consider replicating and expanding this work – to better accomplish their core mission of protecting the nation’s waterways.
• Introduces public interest environmental groups and others to the public trust doctrine and familiarizes them with both the opportunities and limitations its application offers in protecting water resources;
• Identifies for environmental attorneys legal arguments where the doctrine is most relevant to existing state water law and water resource protection;
• Analyzes successful applications of the public trust doctrine and public trust statutes through case studies of California, Hawai’i, and Vermont and in an accompanying 50-state index of constitutional and statutory provisions and notable cases related to the public trust doctrine; and
• Encourages reconsideration and reassessment of this ancient legal doctrine to confront the challenges facing modern freshwater management at the state level.
While the public trust doctrine is neither a panacea nor an adequate substitute for comprehensive water regulations, it is both a powerful legal tool and an effective paradigm for water resources management. The public trust doctrine embodies the ethical touchstone from which all water resource decisions should be made: namely, that water resources belong to the public. They are not commodities to be sold but natural assets to be protected, and we have a collective responsibility to preserve water resources for future generations.
Keywords: public trust, water, groundwater, riparian, prior appropriation, Fifth Amendment takings, background principle
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