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Water We Cannot See: Codifying a Progressive Public Trust to Protect Groundwater Resources from Depletion

Posted by on Wednesday, April 26, 2023 in Notes, Volume 76, Number 3.

Susan Emily Ness | 76 Vand. L. Rev. 953

Groundwater provides a vital water supply and plays an integral role in hydrological systems by supporting biodiversity and the overall health and functioning of surface waters. Yet, the current legal landscape in the United States premises groundwater management on outdated scientific understandings of hydrology and fails to adequately protect critical groundwater resources. Moreover, states differ significantly in their groundwater management practices despite the interstate nature of many aquifers. As climate change exacerbates stress to groundwater resources, many of the United States’ largest aquifers rapidly approach depletion.

The public trust doctrine may provide a mechanism to regulate groundwater resources in the United States. While the public trust doctrine traditionally applies only to navigable surface water, this Note demonstrates that codification of public trust principles could, and should, expand the doctrine to include groundwater. This Note proposes a federal codified groundwater protection statute rooted in public trust principles. A federally codified groundwater trust would provide the necessary standards to achieve more unified groundwater management. By requiring the government to act as groundwater trustee, this Note’s proposed groundwater trust would facilitate the protection of rapidly depleting groundwater resources to ensure water availability well into the future.

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Susan Emily Ness