Groundwater Management in the High Plains Aquifer in the U. S Groundwater Management in the High Plains Aquifer in the U.S.: Legal Problems and Innovations John C. Peck Professor of Law, University of Kansas School of Law Lawrence, Kansas Special Counsel, Foulston Siefkin LLP Overland Park, Kansas U.S.A.

Groundwater Management in the High Plains Aquifer in the U. S Groundwater Management in the High Plains Aquifer in the U.S.: Legal Problems and Innovations Chapter Outline I. Introduction II. Groundwater Law III. Groundwater Allocation Law in Kansas: Property Rights and the Problem of Claims of “Takings” IV. Recent Issues and Innovations in Groundwater Use and Management V. Conclusion

I. Introduction A. Description of the Aquifer and the Region B. Summary of Legal Issues 1. Is enforced conservation a “taking” of property for which compensation is due? 2. Can states prevent interstate exportation of groundwater? 3. Do states allow intrastate movement of groundwater over long distances? 4. Does state law account for the interaction between groundwater and surface water? 5. Should Texas modify the “Rule of Capture”?

A. American Water Allocation Law, in General II. Groundwater Law A. American Water Allocation Law, in General 1. Water versus Water Rights. 2. The Law of Groundwater Allocation: Various Methods B. Groundwater Law in the States of Kansas, Nebraska, and Texas 1. Kansas: Prior Appropriation 2. Nebraska: Reasonable Use/Correlative Rights 3. Texas: The Rule of Capture

Doctrines for Groundwater Allocation

III. Groundwater Allocation Law in Kansas: Property Rights and the Problem of Claims of “Takings” A. The Legal Problem: Is Compensation Required when the State Restricts Groundwater Pumping? B. The Public Policy Issue: Should the Present Generation Preserve Groundwater for Future Generations?

Walnut Creek Basin and Walnut Creek Intensive Groundwater Use Control Areas (“IGUCAs”); Rattlesnake Creek Basin Scale = 40 km

IV. Recent Issues and Innovations in Groundwater Use and Management A. Kansas 1. Dodge City’s Water Reuse Project 2. Wichita’s Equus Beds Aquifer Storage and Recovery (“ASR”) Project

well field and study area Figure 4 Wichita well field and study area Hansen, C.V., and Aucott, W.R., 2004, Status of ground-water levels and storage volume in the Equus Beds aquifer near Wichita, Kansas, January 200-January 2003: U.S. Geological Survey Water Resources Investigations Report 03-4298, page 2.

Growth of Aquifer Storage and Recovery in the United States

IV. Recent Issues and Innovations in Groundwater Use and Management B. Nebraska 1. Protecting the State’s Groundwater from Interstate Exportation: Anti-exportation Statutes and the Sporhase case 2. Interstate Conflict with the State of Kansas: Nebraska Groundwater Pumping Affects the Republican River

IV. Recent Issues and Innovations in Groundwater Use and Management C. Texas 1. Rethinking the Rule of Capture 2. Moving Ogallala Aquifer Groundwater to Other Uses and Places in Texas

Texas Mesa Water Project See http://www.mesawater.com

Texas Mesa Water Project See http://www.mesawater.com

V. Conclusion A. Introduction B. Water Rights Law and Water Rights Doctrines C. Laws Limiting the Movement of Water Across Political Boundaries D. Conflict Resolution Between Political Entities E. Water Conservation, Water Reuse, Water Recharge and Recovery