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

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.

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).

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.

Replacement of Doctrines by Water-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).

Examples of Eastern Water-Use Permit Programs DateState Waters Covered 1933MDSW 1951INGW (districts) 1966KYGW & SW 1967NCGW & SW (districts) 1969SCGW (districts) 1972GAGW 1972FLGW & SW 1973VAGW (districts)

Examples of Eastern Water-Use Permit Programs DateState Waters Covered 1977GASW 1981NJGW & SW 1982CTGW & SW 1985MAGW & SW 1985MSGW & SW 1989VASW (districts)

Characteristics of Groundwater 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.

Issues Associated with Groundwater 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.

Validity of Replacing Water 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.

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.

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?

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.

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.

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.

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.

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).

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).

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.

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.

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.

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.

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.