American water law reflects the diverse geography and population patterns of this expansive country.1 In the eastern states, where water is rather abundant, the doctrine of riparian rights dominates water law.2 The arid western states, in contrast, rejected the doctrine of riparian rights in favor of the doctrine of prior appropriation due to a natural scarcity of water and increasing population growth.3 The western states provide fertile ground to consider the burdens of a rapidly growing region on already scarce water resources.4 My thesis is that the public trust doctrine is being underutilized by the states and that the optimal approach to the western states’ water scarcity dilemma is one that applies the public trust doctrine more aggressively while simultaneously diminishing the applicability of the prior appropriation doctrine with its inherently private property approach to water resource entitlement.5 There are two ways to conceptualize a more robust public trust doctrine. The first is to expand the waters that are subject to the public trust doctrine, essentially an expansion of location. The second way is to increase the doctrine’s reach to include additional purposes and uses within the protection of the doctrine. I recommend extending the public trust doctrine to encompass all bodies of water serving the public welfare, even minimally.6 I also support expanding public trust purposes, even though much of this Article’s focus concerns making the case for expanding the geographical scope of the doctrine.
Carol Necole Brown, Drinking from a Deep Well: The Public Trust Doctrine and Western Water Law, 34 Fla. St. U. L. Rev. 1 (2006).