ABSTRACT
This chapter explains how few courts, and the many academics and activists who egg them on, have misunderstood and distorted the common-law public trust doctrine. The implications for water markets are significant. Water markets cannot exist without secure and clearly defined property rights in water or in the use of water. Water rights in the United States are defined in various ways, almost entirely by the states. The most important background principle in the context of water is the public trust doctrine. The doctrine originated as a recognition of a public right of access to navigable waters, including those under which the submerged lands are privately owned, for the purposes of navigation and fishing. Thirty-eight years later, the National Marine Fisheries Service (NMFS) listed the West Coast steelhead trout as an endangered species in the Project watershed under the Endangered Species Act of 1973 (ESA).
