Water Resources and the Public Trust Doctrine

Abstract

The expansion of the concept and application of the Public Trust Doctrine (PTD) to water rights and the attendant water resource is considered. The Public Trust Doctrine traditionally has been limited to lands over which the tides ebb and flow for commerce or other defined uses. The first application of PTD to inland waters/lands occurred in 1892 in Illinois to lands under Lake Michigan subject to tidal action. Since then, however, PTD has been applied to lands that are nontidal and, recently, to non‐navigable waters (not lands). Recently in California, the State Supreme Court held that a “Public Trust Easement” exists on the state's navigable waters and that this easement protects public trust values from being harmed by water rights appropriations. This application to water states that, under some conditions, water rights are subject to PTD and, thus, may be lost or reduced with no compensation to the right holder.