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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

Evolution in Ground Water Allocation: State Experiences

William E. Cox

Civil and Environmental Engineering

Virginia Tech

the original approach absolute ownership doctrine
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
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
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
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).
examples of eastern water use permit programs
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)

examples of eastern water use permit programs7
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)

characteristics of groundwater permitting
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.
issues associated with groundwater permitting
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.
validity of replacing water allocation law
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.
validity of applying controls in designated areas vs statewide
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
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
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
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
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
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
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
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
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
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
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.
  • 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
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.