Public Trust Principles have legal roots in Justinian laws of Rome and have been a part of our democracy for centuries dating back to the Magna Carta in 1215. The Great Lakes were placed in public trust with the signing of the Northwest Territory Treaty in 1787. Agreeing to these principles was a requirement for statehood for most of the Great Lakes Territories. U. S. Supreme Court affirmed the public trust in 1892, and is a part of common law, court rulings and constitutional law in the Great Lakes States and Provinces.
Public trust law sets forth several basic principles or standards, which in turn provide an overarching framework to govern all decisions, rights, and duties regarding navigable waters and tributaries of the Great Lakes Basin.
- Public trust waters and protected uses cannot be alienated by government, and in any event may never be transferred or controlled for private purposes. A public purpose is required. (Public protected uses include navigation, commerce, fishing, swimming, recreation, and drinking water).
- The proposed diversion or use cannot materially impair the flow, level, integrity, or quality of public trust water and tributary water. It cannot materially impair public trust resources or protected public uses.
- A duty is imposed on government to account for its actions or approvals of a diversion or use by making duly recorded findings based on adequate information concerning the effects of a proposed use to assure that there is no unlawful alienation or transfer for private purpose and no material impairment of public trust waters or uses.
There are also four additional principles that flow from the basic principles above.
- The substantial value of public trust waters, natural resources, and uses is presumed, and the burden of proof is on those who seek to use or alter the public trust commons or uses, both human and other species.
- The “nibbling effects” or cumulative effects of human actions must be considered and determined by government not to violate any of the core public trust principles or standards before any decision on approval or denial of a use may be made.
- Government has a continuing duty to protect public trust waters, their flows, levels, quality, and the integrity of the ecosystem. In practice, this means that the government has a duty to consider and determine that there will be no impairment or harm to the flows, levels, quality, and integrity of public trust waters, uses, and ecosystem before it makes any decision or approves or denies any request for a permit or other governmental action. This duty includes data and information required for long-term planning and future decisions to satisfy the solemn and perpetual trust responsibility.
- Government must balance two or more competing uses so they share the common public trust waters or public natural resources or commons in a manner that the public trust is not impaired and protected public trust uses, such as boating, swimming, fishing, drinking water, bathing, and other personal or recreational activities are not subordinated to private or non-trust public uses, such as public infrastructure; this means that all reasonable private use and public uses may be accommodated so long as the public trust waters and ecosystem are not harmed and paramount public right to public uses are not subordinated or impaired.