Have A Comment?

We would like to invite you to write a guest post for the Hydrowonk Blog … more

Then & Now: The Public Trust Doctrine

Water resource issues are inherently long-term. In Then & NowJOW periodically looks back at major issues and compares the analyses, assessments and predictions made in Water Strategist (“WS”) with the state of the issue today. In this installment, JOW looks at the public trust doctrine.

In April 1987, WS explored the development of the public trust doctrine considering the 1983 California Supreme Court’s Mono Lake decision (National Audubon Society v. Superior Court). As stated by WS, “The doctrine requires states to consider how their water policies affect public trust values (including navigation, commerce, fisheries, recreation, and ecology), and to protect those values whenever reasonable.”

Because states had the power to reconsider prior water allocation decisions under changes circumstances and societal values, the question of how the public trust doctrine would work in practice remained. But examination of the issue showed that it was “broad mandate to consider public trust values rather than a rigid prescription to protect them.” It was about balancing the interests of water appropriators against the public trust values. Throughout the west, courts upheld allocation permits in conflicts between appropriators and public trust values as long as established procedural guidelines were followed. And legislatures passed bills focusing on clarifying procedures for considering competing interests in water permit reviews or limiting subsequent state claims under the doctrine.

Coming forward more than 35 years since the Mono Lake decision, the public trust doctrine is playing out differently in different areas. In some areas, such as California, the balancing act relies heavily on regulatory systems, which have led to curtailments even for senior water right holders, water project allocations as low as 0% for some users, and thorough impact studies required for local land use decisions, as well as larger water project development.

And the scope continues to grow. In August 2018, a California appellate court, relying heavily on the 1983 Mono Lake decision, ruled that public trust doctrine applies to groundwater. The case, Environmental Law Foundation v. State Water Resources Control Board, states that the groundwater must be managed to prevent dewatering of connected rivers and streams. The decade-old lawsuit was originally brought to protect the Scott River in Siskiyou County, but the ruling is broader and has statewide implications. While California now has the Sustainable Groundwater Management Act (“SGMA”) in place to manage groundwater resources to avoid undesirable effects, the court stated that it was not comprehensive enough to supersede the public trust doctrine.

In addition, on July 31, 2019, California Governor Gavin Newsom signed SB 307 requiring certain groundwater exportation projects on desert lands to undergo additional scrutiny by the State Lands Department to ensure that “ the proposed transfer will not adversely affect the natural or cultural resources, including groundwater resources or habitat…” A narrow definition of “desert lands” and declarations referencing public lands in the Mojave Desert, the Mojave National Preserve, and the Mojave Trails National Monument, have the bill taking aim at the Cadiz Water Project, but reflects the expanding scope of the public trust doctrine.

The west has also the use of market-based approaches to meet public trust objectives. WS regularly reported on transactions by the Colorado Water Trust, Columbia Basin Water Transactions Project, Deschutes Resources Conservancy, Montana Water Trust, and Oregon Water Trust (now known as the Freshwater Trust), in which these environmental organizations would lease or purchase water from irrigators to maintain streamflows during the hot summer months. More recently, JOW has reported on leases by public agencies to meet streamflow requirements.

For background on public trust-related policy actions, read:

For examples of recent public trust water transactions, read:

While the public trust doctrine is yielding public policy that aims to balance competing interests rather than compromising private property rights for the greater good, it still presents uncertainty for matters like year-to-year water allocations and regulatory decisions pertaining to new water projects.


Written by Marta L. Weismann