Water Market Insecurity and Instability – Article written by J. Craig Smith and Devin L. Bybee of Smith Hartvigsen, PLLC

Water Market Insecurity and Instability: the Case Against the Public Trust Doctrine

by J. Craig Smith and Devin L. Bybee

Is a dream a lie if it don’t come true
or is it something worse
that sends me down to the river
though I know the river is dry

— Bruce Springsteen, The River



            The prior appropriation system has been around for more than a century.  Entire economies and livelihoods have been built and rely upon the certainty and stability that the prior appropriation system provides.  For example, farmers can expect a certain allocation of water to irrigate their crops each year and industries can rely on a dependable supply of water to function, bringing jobs and improving local and state economies.  Overlaying the public trust doctrine onto the allocation system of prior appropriation will destabilize what has been a very stable allocation system for over a century.  The public trust doctrine, with its continuous supervision of water rights, stands for the proposition that a state can change or even eliminate water uses, on a whim, if it finds that the current water use is no longer in what the state considers to be in the public’s best interest.  The consequence is simple: both public and private interests will be less willing to invest in water rights and water infrastructure, which is crucial to the continued growth and economic well-being of cities and towns throughout the western United States.

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