Water rights V: Public rights

(Continuing the series on water rights:)

Whatever property regime applies to water, the public often retains certain rights in the resource. Thus, for instance, in American law, though a river's water may be owned by riparian landowners or appropriators, the federal government retains a "navigation servitude" in the water with which private owners (and states) cannot interfere (Trelease, 1965).

Joseph Sax

Recent decades have seen much discussion of the "public trust doctrine", rules that allow public interests, especially environmental ones, to trump the normal property rules in water. Though the doctrine has its roots in the traditional civil and common law, particularly with regard to tidelands (Selvin, 1980), its modern form was first articulated by Joseph Sax in a highly influential article (1970), in which he argued that the historical doctrine should be developed to encourage courts to subject actions that harm the environment to strict scrutiny. In the field of water rights the doctrine has been applied by American state courts in recent decades to push states to protect environmental values, even when this protection is in tension with private property rights (Craig, 2010). The best-known expression of this trend is the decision of the California Supreme Court in the Mono Lake case, in which the court ruled that longstanding water diversions from the lake by the city of Los Angeles might need to be limited by the state in order to protect ecological values being harmed by the lowering of the lake level. In recent years the doctrine has been adopted in additional countries around the world (Cullet, 2009; Blumm and Guthrie, 2012).

The public trust doctrine continues to receive support from many commentators, but it has also been criticized. On the one hand, it has been argued that the doctrine places undue reliance on an inflexible, property rule as applied by the judiciary, while environmental protection should be sought from progressive legislation (Lazarus, 1986). On the other, the doctrine has been criticizes as historically without basis, undemocratic, and invasive of private property rights (Huffman, 1989, 2007).

Next: A human right to water. The full article is here.