Using the Public Trust Doctrine to 'Make it Rain'

Abstract

When water is plentiful, there is no need for law to govern it. Unfortunately, this is not the case today and has not been for quite some time. While some cities and states are experiencing flooding, others are looking at record droughts. The states facing these record-breaking droughts have legitimate worries over water supply and how to govern it. However, there is an ancient method of collecting water that has become more and more popular in these desperate times in need of water: rainwater harvesting. This article proposes a framework that looks to utilize a legal principle that has been around for hundreds of years to collect rainwater: the public trust doctrine (PTD). First, the article explains why rainwater harvesting is beneficial. Second, it examines the challenges of accessing water in today’s world. Third, the article turns to our nation’s history of water law stemming from early Roman law and how it evolved into a malleable doctrine that has a foundation in placing natural resources such as water, wildlife, and air into the ownership of the public. Within this section, the article then proposes using the existing PTD law to harvest rainwater. Fourth, the article provides a brief description to what some of the nation’s states are allowing and not allowing concerning rainwater harvesting and how the PTD could affect these states. It also suggests that the states adopt rainwater harvesting as a permissive resource under the PTD. Lastly, the article looks to challenges and complexities that could face such a proposal.