This is the third 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. 

Water advocacy groups and environmental attorneys have used a myriad of creative tools to protect water resources, including establishing minimum stream flows and lake levels, purchasing or acquiring in-stream water rights for environmental and recreational purposes, and using federal regulations to restore water for fish.  While each of these strategies may be an effective microscopic solution, a macroscopic, overarching duty to manage water resources sustainably for both people and the environment is missing.   

One solution to this missing duty lies in an ancient legal tool – 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.  As a clear declaration of public ownership, the doctrine also 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 the present and future public and embodies some of the key principles of environmental protection: stewardship, communal responsibility, and sustainability. 

CPR’s forthcoming Manual identifies roles that the public trust doctrine can play in water resources litigation:

• The doctrine informs the discussion of state water laws.  The public trust doctrine is an integral part of every water right that withdraws or affects a public trust resource.  In this way, so-called private water rights are not absolute but instead subject to public considerations.  The public trust doctrine may also influence the interpretation of state water law related to reasonable or beneficial use of water.
• The doctrine is a defense for state action that protects trust resources.  Briefly, there are two types of governmental takings: a physical taking, where a private property owner is actually and physically displaced from property, and a regulatory taking, where governmental regulations deny all economically beneficial use of private property.  In 1992, the Supreme Court did create an exception to regulatory takings: if the regulation arises from an inherent restriction in the property title, then there is no denial of all economically beneficial use of property.  Among these inherent restrictions, or what the Court termed background principles, is the public trust doctrine, a legal and historical doctrine that colors every property right, whether in land or in water.  In makingregulations that, for example, reserve water or prohibit wetlands destruction, states may assert this exception to foreclose dilatory lawsuits.
• The doctrine also fills the gaps in existing state water laws.  For the many states without comprehensive water regulation or integrated surface water and groundwater regulation, the public trust doctrine can help ensure protection of water resources as an overarching state duty.
• At the same time, the doctrine evokes a compelling narrative that may prove to be a tipping point in water resources litigation. The concepts behind the public trust doctrine – guardianship, responsibility, and community – are powerful ideas that resonate across society.  (Carol M. Rose, Joseph Sax and the Idea of the Public Trust, 25 Ecology Law Quarterly 351 (1998)).  The public trust doctrine is as much a legal tool as an environmental paradigm, a principle that use of precious water resources must proceed with deference to certain enduring public rights.  (Waiahole, 9 P.3d 409, 502 n.108 (Haw. 2000)).

In the years to come, water could supplant petroleum as the world’s most coveted and contested liquid.  This miraculous liquid that sustains life on earth needs a solid framework of legal protections to ensure adequate supplies for present and future generations.  This framework is incomplete without a robust public trust doctrine to guide courts and legislatures in rigorously protecting water resources.

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