Water pollution and the public trust doctrine
The prior appropriation system has served well in the Western US for 125 years, providing a legal regime that permits and encourages enormous economic growth of agriculture, industry and municipalities. This system, however, both in its inception and current application, fails to address or protect public interests in fisheries, recreation, environmental quality, and clean water. As a result, serious nonpoint water pollution problems are occurring throughout the West. Such pollution can be regulated either by the courts or the legislatures under the public trust doctrine, which antedates the prior appropriation system, and which protects fisheries and water quality. No one - including irrigators, industries or cities with appropriative rights - has a vested, constitutionally protected property right to degrade the quality of public waters. Some states are adopting police power regulations to control nonpoint pollution. Others are approaching the problem through the prior appropriation system itself, taking the position that beneficial use means use that does not harm the public through pollution. The public trust doctrine is not a panacea that will instantly solve all the conflicts that now surround the prior appropriation system. It should be considered, however, as a basis for setting standards as best practicable technology or best management practice.
- OSTI ID:
- 6895737
- Journal Information:
- Environmental Law; (United States), Vol. 19:3; ISSN 0046-2276
- Country of Publication:
- United States
- Language:
- English
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