LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 44
activities such as sailing, swimming, hunting and the enjoyment of scenic and aesthetic
beauty. 174
Despite the fact that there is a trend toward expansion, those who oppose an extension of
the doctrine, contend that the inclusion of other resources is not consistent with the historic
foundation of the doctrine. 175
A prime example of this debate is the issue of whether or not
groundwater should be protected by the public trust doctrine.
The vital role groundwater plays in the survival and development of the United States is
rapidly emerging as an important and visible issue in the American consciousness. Groundwater
supplies approximately ninety-six percent of the water in the United States. 176
Moreover, at least
fifty percent of the “of the domestic water used in the United States is derived from
groundwater.” 177 In some areas, populations are one hundred percent reliant on groundwater. 178
Thus, it follows that groundwater is one of the nation’s most precious natural resources.
Opponents to the extension of the public trust doctrine assert that the traditional
application of the public trust doctrine extended only to surface water; however, advances in
science and technology demonstrate that there is a significant interrelationship between ground
and surface water. 179
It follows from this fact and basic hydrogeologic concepts that
contamination of surface water can ultimately lead to the contamination of groundwater. This
174 Hixon v. Public Service Commission, 146 N.W.2d 577, 582 (Wis. 1966).
175 See Kanner, supra note 8.
176 Albert P. Barker & Richard B. Burleigh, Agricultural Chemicals and Groundwater Protection: Navigating the
Complex Web of Regulatory Controls, 30 IDAHO L. REV. 443, 449 (1993/1994).
177 Id.
178 Blake Johnston, Dara Lum & Susan Curtis, Groundwater in the West, 8 U. Denv. Water L. Rev. 328, 335 (2004).
179 Kanner, supra note 8.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM