Evolution in Ground Water Allocation: State Experiences

1. Evolution in Ground Water Allocation: State Experiences William E. Cox Civil and Environmental Engineering Virginia Tech

2. The Original Approach:Absolute Ownership Doctrine • Originated in England, transferred to the U.S. • Underlying premises: • Groundwater is distinct from surface water. • Movement is not predictable; rules not possible. • Consists of a rule of capture. • No liability is imposed for interference (except for malicious use or waste) • WI exception – no liability even if use malicious. • Once widely accepted in U.S.

3. Evolution in the Common Law:The Reasonable Use Doctrine • Basic premises: • Groundwater is distinct from surface water. • Overlying landowners have right to make a reasonable use on overlying land. • Extent of restrictions imposed: • Export is prohibited (if injury produced). • No restrictions imposed on conventional on-site use. • Became widely accepted (except Texas).

4. Further Evolution in Doctrines • “Modified reasonable use” doctrine. • Multiple origins: • Judicial development. • American Law Institute “Restatement.” • Sharing is imposed among on-site users. • Examples of acceptance: (AR, AL, DE, MI, OH, WI). • Correlative rights doctrine • Incorporates safe yield and sharing concepts. • Accepted in CA.

5. Replacement of Doctrines byWater-Use Permitting • Created by legislation in several states. • Applied to groundwater only or to both surface and groundwater. • Applied statewide or within designated districts only. • Administered by state government (usually).

6. Examples of EasternWater-Use Permit Programs Date State Waters Covered 1933 MD SW 1951 IN GW (districts) 1966 KY GW & SW 1967 NC GW & SW (districts) 1969 SC GW (districts) 1972 GA GW 1972 FL GW & SW 1973 VA GW (districts)

7. Examples of EasternWater-Use Permit Programs Date State Waters Covered 1977 GA SW 1981 NJ GW & SW 1982 CT GW & SW 1985 MA GW & SW 1985 MS GW & SW 1989 VA SW (districts)

8. Characteristics ofGroundwater Permitting • Permits become the exclusive basis for rights (except for exempted uses). • In the West, permits are based on appropriation. • Priority in time gives the better right. • In the East, permits create a pool of equal rights without hierarchical structure. • Preferential treatment based on type of use may be imposed during shortage.

9. Issues Associated withGroundwater Permitting • Validity of replacing water allocation law. • Validity of applying controls in designated areas. • Criteria for permit issuance / denial. • Consideration of surface / groundwater interaction. • Permit transferability. • Validity of interstate export restrictions.

10. Validity of ReplacingWater Allocation Law • Can water rights systems be replaced? • Yes, provided that “vested rights” are recognized. • What are vested rights? • Existing water uses are included. • Dormant rights are generally not vested. • Majority view: Florida. • Exception: Oklahoma.

11. Validity of Applying Controls in Designated Areas (vs. Statewide) • Unequal treatment is the issue. • Discriminatory measures are permissible if classifications are based on differences in circumstances. • Limitation of permits to certain areas is permissible if based on variation in water supply conditions and problems.

12. Criteria for Permit Issuance / Denial • Established by permit legislation. • Permits are usually granted in absence of harm • To other water users. • To the public interest (e.g., impacts on environmental quality). • Validity of decisions is usually an evidentiary issue – will there be harm?

13. Consideration of Surface / Groundwater Interaction • Can be included in permit decision criteria. • Serves as a key aspect of conjunctive management approaches. • Can be included in a “groundwater only” approach by specific legislative provision. • Requires finding of “hydraulic continuity” and resolution of the time lag issue.

14. Case Study: Protecting Surface Waters by Restricting Groundwater Use Hubbard vs. State (WA) • Challenge by well owners to restrictions to protect minimum streamflows. • Minimum flows had been designated prior to groundwater appropriation (senior rights). • Restrictions were upheld based on finding of “hydraulic continuity” between groundwater and surface water. • Time lag was apparently ignored.

15. Permit Transferability • Water-use permits are generally transferable, subject to • Intent of legislation. • Provisions for prevention of harm. • Impact of time-limited permits. • Lack of precedent in eastern programs. • Transfer of appropriative rights in the West • Has a substantial history. • Is complicated by the return flow issue.

16. Validity of Restrictions on Interstate Export • Water is an article of commerce under U.S. Constitution. • Categorical prohibition of export is not allowed. • Export can be subjected to the same restrictions as in-state use. • Additional restrictions on export require special justification.

17. Case Study of Export Restrictions:Sporhase vs. Nebraska • Landowner challenge to statute prohibiting export of water from NE to CO (farmer’s land straddled state boundary). • NE Permit not possible due to lack of “reciprocity” (export / import linkage). • Water held to be an article of commerce protected by commerce clause of Constitution. • Permit requirement held invalid since a reciprocity statute is an unacceptable burden on interstate commerce (too blunt an instrument).

18. Sporhase, continued • Guidelines for permissible state controls: • Interstate transfer can be subjected to same controls applied to in-state use. • Any additional restriction on export must be closely tied to a water conservation need. • Under general conditions of scarcity, a total ban on export may be permissible (other cases suggest this option is limited).

19. Case Study of Export Restrictions:El Paso vs. Reynolds • Federal court action appealing denial of NM permits to move groundwater to TX. • NM statute banning export invalidated. • Statute was intended to fall within Sporhase guidelines for total ban under scarcity. • Court limited acceptable conditions for ban to protection of human survival, not protection of economic interests.

20. Further Developments at El Paso • Subsequently, NM replaced the ban with an export permit requirement for new water uses and transfers of existing rights. • Restrictions on water-rights transfers were invalidated in new court challenge due to unequal treatment of out-of-state transfers . • NM legislature amended the law to remove different treatment. • After other issues arose, El Paso’s applications were withdrawn.

21. Potential Means to Circumvent the Prohibition on Interstate Export. • Federal consent to restrictions. • Congressionally approved compacts. • Other interstate agreements. • Federal laws, policies, or programs. • State participation in water marketing. • Limitations on sale rather than regulation. • Use of state taxation powers.

22. Conclusions • Reasonable use is the most common groundwater doctrine. • Export from overlying land is prohibited (if injury produced). • Traditional doctrine imposes few restrictions on on-site use. • Modified doctrine limits ability to injure neighbors.

23. Conclusions, continued • Water-use permitting to control additional development is valid. • Several states have active programs. • Existing water uses must be recognized. • New uses can be prohibited to protect the public interest (including the environment). • Water rights can be transferable (subject to complications). • State restrictions on interstate transfer are subject to limitations.