Groundwater is a precious—and all too often scarce or polluted—
resource. As groundwater withdrawals continue apace, challenges have
emerged around groundwater quality and quantity. In the past several years,
courts and legislatures have increasingly been called on to resolve disputes
involving groundwater.
One recourse is the public trust doctrine—the principle that certain
natural resources are held in trust by the state for the benefit of the public.
But is groundwater a public trust asset? Should it be? And what does a
groundwater trust look like?
This Article seeks to answer these questions, exploring the relationship
between groundwater and the public trust doctrine. It makes three
contributions: (1) a catalog of the recent state-level debates over whether
groundwater is a public trust asset; (2) a normative case for why groundwater
should be a public trust asset; and (3) an articulation of how to entrust
groundwater.
