Joseph Regalia and Noah D. Hall
This article addresses the fundamental question of the state’s interest in its territorial waters. What is meant by the oft-used term, “waters of the state”? Is it simply state ownership of water as property? Or does it refer to the state’s unique role as sovereign and steward over its water, a complex regime of overlapping rights and duties stemming from police powers, the public trust doctrine, the equal footing doctrine, and parens patriae standing? Does it matter how a state defines its waters? And do state declarations about their water – from hydrology to ownership – align with our notions of property and sovereignty?
We conclude that declarations of water as state-owned property are fundamentally flawed. The United States Supreme Court long ago rejected assertions of state ownership of natural resources. And from its start, American law has recognized that water by its nature cannot be one’s property. Thus, states cannot own water. Nor should they. The states can regulate water use pursuant to police powers, protect public interests within our federal system pursuant to parens patriae, and must even steward our water pursuant to the public trust doctrine.
Great Lakes Law 