Water Resources and the Public Trust Doctrine
Publication: Journal of Water Resources Planning and Management
Volume 112, Issue 1
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.
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References
1.
Barney v. City of Keokuk, 94 US 324 (1877).
2.
Borax Consolidated, Ltd. v. Los Angeles, 296 US 10,27 (1935).
3.
The Daniel Ball, 77 US 557 (1871).
4.
Illinois Central v. Illinois, 146 US 387 (1892).
5.
“Legal Aspects of Instream Water Uses in California (Background and Issues), Staff Paper No. 6, Governor's Commission to Review Water Rights Law, Jan., 1978.
6.
Marks v. Whitney, 6 Cal 3d 241 (1971).
7.
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8.
Packer v. Bird, 137 US 661 (1891).
9.
People v. California Fish Co., 166 Cal 576 (1913).
10.
Sax, J. L., “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” Michigan Law Review, 68:471, 1970.
11.
Shirley v. Bowlby, 144 Cal 134 (1904).
12.
Sierra Club v. Department of Interior, 326 F. Supp. 90.
13.
Smith v. Maryland, 59 US 71 (1855).
14.
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15.
State of California, et al. v. R. R. Lyons, et al., 29 Cal 3d 210 (1981).
16.
United Plainsmen Association v. North Dakota State Water Conservation Commission, 247 N.W. 2d 457 (1976).
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Copyright © 1986 ASCE.
History
Published online: Jan 1, 1986
Published in print: Jan 1986
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