Full document / COSOC-W-86-002 - the National Sea Grant Library
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Full document / COSOC-W-86-002 - the National Sea Grant Library

Full document / COSOC-W-86-002 - the National Sea Grant Library Full document / COSOC-W-86-002 - the National Sea Grant Library

nsgl.gso.uri.edu
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11.02.2013 Views

594 Recreation and environmental uses are at the bottom of this list. Second, oven if the Water Commission wanted to allocate water for freshwater inflows, there is little if any unappropriated water available. Existing water permits provide vested rights which cannot be altered and which can be cancelled only after abandonment or ten years of non-use. Civen these limitations and the nature of the statutes designed to protect estuaries, any efforts at maintaining adequate freshwater inflows have to be made on a case-by-case basis, which results in piecemeal protection. This fragmented approach also requires a considerable investment of time and money from any group or agency trying to preserve the state's estuary systems, because their efforts must be repeated each time a new threat arises. Because the public trust doctrine is not wall developed in Texas, and the issue of third party standing has not yet been settled, it is difficult to predict the outcome of a suit to protect freshwater inflows into estuaries. A court could easily determine that standing would depend on showing special injury. Even if standing were granted, there are some grounds for arguing that the trust doctrine in Texas has bean subsumed into the state water code, which prohibits appropriations that are detrimental to the public welfare and requires The Commission, before issuing a permit, to consider the effect of the permit on bays and estuaries. Any litigation is expensive and time consuming. If a suit were brought to preserve freshwater inflows, the courts could reach a decision which limits the power of the public trust doctrine and thereby establish a precedent which would restrict future efforts. Even if a case were settled to the benefit of the estuary, it might be determined on factors peculiar to one situation without producing any broader gains or guidelines. On the other hand, a broad and positive ruling involving the doctrine would result in extensive gains for estuary protection and for other natural resources as well. For example, a ruling like that in the Mono Lake case could give freshwater inflows a ouch higher priority than they have under the current water code preferences, and night also be instrumental in freeing up water on overappropriated rivers through the revocation fo existing permits. Both the coats and the potential gains of public trust litigation arc high. Since the attitude of Texas courts is currently so unclear, such litigation might best be postponed until other options have been attempted or until the courts give sooe indication of favoring the public trust approach.

REFERENCES Morrison, M.D. and M.K. Dollahite. 1985. The Public Trust Doctrine: Insuring the Needs of Texas Bays and Estuaries. Baylor Law Rev. 37: 365-424. Sax, J. 1970. The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention. Michigan Law Rev. 68: 473-566. Sherton, C.C. 1981. Preserving Instream Flows in Oregon's Rivers and Streams. Environmental Law 11: 379-419. Tarlock, A.D. 1978. Appropriation for Instream Flow Maintenance: A Progress Report on "New" Public Western Water Rights. Utah Law Rev. 211-247. Texas Department of Water Resources. 1982. The Influence Of Freshwater Inflows Upon the Major Bays and Estuaries of the Texas Gulf Coast: Executive Summary. Texas Dept. of Water Resources, Austin, Texas 53 p. TEX. STATE WATER CODE (Vernon Supp. 1986). Trcleasc, F.J. 1977. New Water Legislation: Drafting for Development, Efficient Allocation and Environmental Protection. Land and Water Law Rev. 12: 386-429. Weaver, J.L. 1985. The public trust doctrine and Texas water rights administration: common law protection for Texas' bays and estuaries? State Bar of Texas Environmental Law J. 15(2): 1-10. 595

REFERENCES<br />

Morrison, M.D. and M.K. Dollahite. 1985. The Public Trust<br />

Doctrine: Insuring <strong>the</strong> Needs of Texas Bays and Estuaries. Baylor<br />

Law Rev. 37: 365-424.<br />

Sax, J. 1970. The Public Trust Doctrine in Natural Resource<br />

Law: Effective Judicial Intervention. Michigan Law Rev. 68:<br />

473-566.<br />

Sherton, C.C. 1981. Preserving Instream Flows in Oregon's<br />

Rivers and Streams. Environmental Law 11: 379-419.<br />

Tarlock, A.D. 1978. Appropriation for Instream Flow<br />

Maintenance: A Progress Report on "New" Public Western Water<br />

Rights. Utah Law Rev. 211-247.<br />

Texas Department of Water Resources. 1982. The Influence Of<br />

Freshwater Inflows Upon <strong>the</strong> Major Bays and Estuaries of <strong>the</strong> Texas<br />

Gulf Coast: Executive Summary. Texas Dept. of Water Resources,<br />

Austin, Texas 53 p.<br />

TEX. STATE WATER CODE (Vernon Supp. 19<strong>86</strong>).<br />

Trcleasc, F.J. 1977. New Water Legislation: Drafting for<br />

Development, Efficient Allocation and Environmental Protection.<br />

Land and Water Law Rev. 12: 3<strong>86</strong>-429.<br />

Weaver, J.L. 1985. The public trust doctrine and Texas water<br />

rights administration: common law protection for Texas' bays and<br />

estuaries? State Bar of Texas Environmental Law J. 15(2): 1-10.<br />

595

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