Protecting the Invisible: The Public Trust Doctrine and Groundwater

This is the fourth and final post 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.  Prior posts are available here.

Groundwater, invisible as it meanders beneath our feet, provides about half of all drinking water in the United States and nearly all drinking water for rural populations.  As water demand skyrockets, groundwater pumping rates far exceed replenishment rates.  For instance, underlying the Great Plains is the Ogallala Aquifer, which has provided water for decades of farming.  Now, this once dependable and seemingly infinite source is now disappearing in certain areas, reversing farming fortunes for many.  In the Southeast, saltwater is entering the Floridan Aquifer due to low water levels, potentially contaminating the water supply for many communities.

Despite these threats and a future of increasing demand, many states have only recently begun to actively and comprehensively regulate groundwater, providing an opportune moment for water advocacy groups to push for public trust legislation.  Historically, the public trust doctrine excludes groundwater from its protective scope.  Yet applying the public trust to groundwater is a logical and sensible progression of the modern public trust doctrine, consistent with the focus on water.  Groundwater is no less important to the public than the coastal and navigable waters that are protected under the traditional public trust doctrine.  In many parts of the country, groundwater is the direct source of water for surface springs and other navigable bodies of water.

Applying the public trust doctrine to groundwater would integrate the science of hydrology and water law.  The haphazard regulation of groundwater developed at a time when, as one court declared, the existence and movement of groundwater was perceived as “secret, occult, and concealed” so as to render legal rules “practically impossible.”  Houston & T.C. Ry. Co. v. East, 81 S.W. 279 (Tex. 1904).  Hydrology has long explained the mysterious properties of groundwater and has established definitive connections to surface water and the larger global water cycle, yet many states continue with separate laws governing groundwater and surface water.

Luckily, the legal foundation to extend the public trust doctrine to groundwater exists by legal precedents in California and Hawai’i and by legislation in Vermont.  Building on the California Supreme Court’s decision in Mono Lake, which extended public trust protection to smaller water bodies, the Hawai’i Supreme Court went even further to declare that the public trust doctrine applies to all waters.  The court saw “little sense in adhering to artificial distinctions between surface and ground waters neither recognized by the ancient system nor borne out in the present practical realities of this state.”  Waiahole, 9 P.3d 409 (Haw. 2000).  By contrast, the non-profit Vermont Natural Resources Council engineered a successful four-year grassroots campaign to legislatively extend public trust protection to groundwater.

Extending the public trust doctrine to groundwater does not require great feats of judicial or legislative acrobatics.  Instead, it requires acknowledging the gaping holes in groundwater protection and management and the existing ability to act.  Water flows seamlessly between surface bodies and underground channels, ignoring any distinction between the two physical locations – and so too should a modern public trust doctrine. 

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