Document Type

Working Paper

Publication Date

3-30-2006

SSRN Discipline

PSN Subject Matter eJournals; LSN Subject Matter eJournals; Health Economics Network; delete2; Legal Scholarship Network; Political Economy - International eJournals; Law School Research Papers - Legal Studies; Administrative Law eJournals; Law School Research Papers - Public Law & Legal Theory; Political Institutions eJournals; Political Science Network; Environmental & Natural Resources Law eJournals; Political Economy - Development eJournals

Abstract

American water law reflects the diverse geography and population patterns of our country The arid western states provide fertile ground to consider the burdens of a rapidly growing region on scarce water resources This Articles thesis is that the public trust doctrine is being underutilized by those western states to address their water scarcity dilemma I recommend extending the geographical scope of the public trust doctrine to encompass all bodies of water that serve the public welfare even minimallyIn the Article I compare an expanded public trust doctrine against a more aggressive application of the prior appropriation doctrine I discuss why the prior appropriation doctrine and its commodification of water rights is a lesser alternative to rethinking the public trust doctrine Additionally I discuss the problem of vested rights and takings challenges that may arise in the wake of an expanded public trust concept I use the recent United States Supreme Court case Kelo v Town of New London to illustrate the similarities between the Courts traditionally broad understanding of public purpose in the context of takings jurisprudence and the historically dynamic nature of the public trust doctrine My Article explores the proper role of the public trust doctrine in responding to historic mistakes in this countrys approach to water use and conservation in the arid west

Download

Share

COinS