Hitching Our Wagon to a Dim Star: Why Outmoded Water Codes and 'Public Interest' Review Cannot Protect the Public Trust in Western Water Law
57 Pages Posted: 13 Mar 2013 Last revised: 2 Oct 2013
Date Written: July 2, 2013
Scholars have called the public trust’s expansion into water rights the “most significant expansion of public trust principles” in the past few decades. Considering that this doctrinal expansion has been so legally significant, the lack of change in state water codes is both remarkable and troubling. Of particular concern is the largely unnoted trend of equating the public trust with the public interest, which opens the door to the use of politically driven public interest provisions in state water codes. These provisions are rife with problems, all stemming from the fact that legislatures and water agencies wield broad discretion over public interest review. Although use of such provisions may be administratively expedient, the practice falls far short of public trust requirements. Only a more pervasive change to western water codes will truly suffice to bring states into compliance with public trust law.
Part I of this article describes the traditional public trust principles that apply to waters, as well as the modern judicial trend of extending these principles to water use permitting. Part II then analyzes the risky implications of supplanting the public trust with public interest review. While the public interest and the public trust may at first blush appear to occupy common territory, the two are distinguishable in their legal origin, purpose, and scope. Thus, permitting agencies must assess public trust impacts using a distinct analysis grounded in judicial and constitutional definitions of the public trust. Finally, by drawing on the best public trust practices from around the West, Part III advances a water use permitting framework that better fulfills the states’ public trust responsibility.
This article builds on the valuable work of noted scholars Charles Wilkinson, Robin Kundis Craig, Michael Blumm, Harrison Dunning, Brian Gray and others writing in the fields of water law and public trust. Further, the article combines the theoretical and the practical by not only analyzing the key legal developments in public trust and public interest review, but also providing a section on best practices for how states can better conduct public trust review in water use permitting.
Keywords: public trust, water rights, prior appropriation, public interest
JEL Classification: K11, K32, Q22, Q25, Q26
Suggested Citation: Suggested Citation