Water Resources & the Public Trust Doctrine: A Primer

This is the first of four posts on the application of the public trust doctrine to water resources, based on a forthcoming CPR publication, Restoring the Trust: Water Resources and the Public Trust Doctrine, A Manual for Advocates, which will be released this summer.  If you are interested in attending a free web-based seminar on Thursday, July 30, at 3:00 pm EDT, please contact CPR Policy Analyst Yee Huang, or register here. 

While the United States has a strong private property system, that system is a product of common property ownership of certain resources.  Doubtful?  For centuries, people have enjoyed public access to resources such as the ocean, certain bodies of water, tidewaters and tidal lands, shorelines, and most sensibly the air.  Much of the commerce during the foundational years of the United States depended on common, public access to rivers for transportation of goods.  Imagine the hassles if a ship had to negotiate passage through each privately owned section of a river!

In legal terms, this idea of common property ownership is captured in the public trust doctrine, a legal doctrine imported from ancient Roman and English law and common to many cultures around the world.  The doctrine holds that certain water-related natural resources belong to all and cannot be privately owned or controlled because of their overwhelming importance to each individual and society as a whole.  Similar to any legal trust, the public trust doctrine has three primary components: the trustee, the trust principal, and the beneficiaries of the trust.  In the public trust framework, the state is the trustee, which manages specific natural resources – the trust principal – for the benefit of present and future generations – the beneficiaries. 

In its traditional form, the doctrine only encompasses navigable water resources – larger bodies of water that historically accommodated commerce and transportation.  As a result, the traditional doctrine ignores many surface water resources and groundwater.  Yet these latter resources also provide vital public benefits, including drinking water and recreational, environmental, and aesthetic needs. 

Applying the doctrine to all water resources is a logical step that would capture the value and importance of water as a public resource.  Surprisingly though, even after key expansions of the doctrine in California and Hawaii, few states have applied the doctrine to specifically protect water resources.  Several factors, however, may push the public trust doctrine to the forefront of water resource protection: emerging evidence of dwindling inexpensive water supplies; changing public perception of the value of certain uses of water, such as bottled water; looming negative impacts of climate change on water resources and future water supplies; and increasing demands on water to fill a plethora of environmental, municipal, industrial, and agricultural needs.

This disquieting brew provides a timely opportunity for the public trust doctrine to both complement and reinforce water resource protection laws.  States should explicitly declare that the public trust doctrine applies to all water resources.  Such a declaration would create a duty for states to manage water quality, quantity, and viability for present and future generations and would unfailingly recognize the ecological and environmental value of water.

Special thanks to the Park Foundation for making this manual possible.