Hitching Our Wagon to a Dim Star: Why Outmoded Water Codes and "Public Interest" Review Cannot Protect the Public Trust in Western Water Law
This article examines the interrelationship between the public trust and water rights as it is emerging in western states.
Part I of this article describes the traditional public trust principles that apply to waters, as well as the modern judicial trend of extending those principles to water use permitting in the West.
Focusing on an area of particular concern in water codes, Part II analyzes the risky implications of supplanting the public trust doctrine with existing public interest review provisions.
Finally, Part III advances a water use permitting framework that better fulfills the states' public trust responsibilities. Drawing on the best public trust ideas from around the West, this part recommends water codes that include: definitions and criteria that differentiate the public trust from the public interest; procedural requirements that ensure water use applicants demonstrate a lack of substantial impairment to the trust before a use permit issues; and permit conditions that preserve a state's right to modify or revoke a permit if a water use ultimately impairs the trust. This part also explains why the judicial and executive branches play a critical role in creating the larger context for public trust protection.
The article concludes that these affirmative steps are legally necessary to bring the West's water laws into better alignment with the public trust.