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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:

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Evolution in ground water allocation state experiences l.jpg

Evolution in Ground Water Allocation: State Experiences

William E. Cox

Civil and Environmental Engineering

Virginia Tech


The original approach absolute ownership doctrine l.jpg
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.


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    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).


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    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.


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    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).


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    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)


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    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)


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    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.


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    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.


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    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.


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    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.


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    Criteria for Permit Issuance / Denial Statewide)

    • 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?


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    Consideration of Surface / Groundwater Interaction Statewide)

    • 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.


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    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.


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    Permit Transferability Groundwater Use Hubbard vs. State (WA)

    • 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.


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    Validity of Restrictions on Groundwater Use Hubbard vs. State (WA)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.


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    Case Study of Export Restrictions: Groundwater Use Hubbard vs. State (WA)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).


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    Sporhase, Groundwater Use Hubbard vs. State (WA)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).


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    Case Study of Export Restrictions: Groundwater Use Hubbard vs. State (WA)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.


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    Further Developments at El Paso Groundwater Use Hubbard vs. State (WA)

    • 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.


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    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.


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    Conclusions Export.

    • 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.


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    Conclusions, Export. 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.


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