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The Public Trust Doctrine: Protecting Water Resources

Decades of unwise water policies and practices have left water resources in the United States overdrawn and increasingly overwhelmed. In many parts of the country, the warning signs are obscured by flowing rivers and streams and plentiful tap water from the kitchen faucet. But upon closer examination, the signs are clear: river flows are low and wells are becoming depleted. Meanwhile, the projected trends are not reassuring. Demands for water resources from urban and suburban development are competing with demands for aquatic ecosystem restoration and preservation. Worse, climate change promises to exacerbate the problem by fundamentally altering the fresh water cycle. 

Much of the battle to preserve and protect water resources happens at the state and local levels – in any number of policy choices advocated and made by individuals, organizations, companies, and governments. In recent years, water activists have begun to deploy a new tool geared to shape these decisions. Long-established in legal jurisprudence, the public trust doctrine holds that certain natural resources belong to all and cannot be privately owned or controlled because of their intrinsic value to each individual and society.  While water resources protected under the doctrine may not be monopolized by private entities, they nevertheless face great strains today from private use and misuse. 

The Center for Progressive Reform’s Restoring The Trust: Water Resources & The Public Trust Doctrine, A Manual For Advocates explores the specific application of the public trust doctrine to the protection of surface water and groundwater resources. The Manual introduces water and environmental advocates to both the opportunities and limitations of applying the doctrine to water protection efforts and encourages reconsideration and reassessment of the legal doctrine to confront the challenges facing modern freshwater management at the state level. The Manual identifies areas where the public trust doctrine applies to existing state water laws and in litigation.

CPR Materials on Water Resources and the Public Trust Doctrine:

 

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© Center for Progressive Reform, 2013