Monday, March 23, 2015

Water Down Under: A Report from Australia by Barbara Cosens: Post 7: Conjunctive Management Down Under

[The Water Down Under series of posts is by Barbara Cosens, who is in Australia this semester working on water law issues there.  See more about this series, and previous posts hereherehereherehere, and here.]

In both the United States and Australia, the intersection of the development of drilling technology, the conversion of a pump used in the oil field for use in water wells, and the post-World War II availability of rural electricity, led to rapid development of groundwater for irrigation beginning in the 1950’s.  The ability to tap into a steady supply, not (at least in the short term) subject to the seasonal and year-to-year fickle nature of surface water was an arid lands farmer’s dream come true. 

Scientists knew even then of the connection between surface and groundwater, but pre-World War II levels of development did not warrant recognition of that connection in the law.  Unfortunately, the rapid post-war development outpaced the response of our legal systems and today both countries are seeking to manage the impact of groundwater development on surface water use for both economic and environmental purposes. The treatment of ground and surface water as one resource is referred to as conjunctive management and even in those parts of the United States where it has been around on paper for a bit, it can be considered in its infancy in terms of sophistication. 

Although Australia and the United States began with English common law, they have diverged in their subsequent development of the law and thus, in how they are addressing the surface-ground water connection.  The English common law takes the view that a landowner may access and exploit the water beneath their land, even when pumping draws water from beneath neighboring land.  To understand how the United States and Australia have diverged from this approach, it is useful to look at specific applications in New South Wales and in Idaho. 

Australia’s National Water Initiative of 2004 was an agreement among the State, Territorial, and Commonwealth governments to address some of Australia’s pressing water problems.  Among those problems was the massive increase in groundwater use, particularly in response to the millennium drought which spanned the period of 1995-2011.  During this period, farmer’s switched to groundwater, a response to drought similar to that of California’s Central Valley farmers in recent years.  Among the solutions the States and Territories agreed to was a process of defining water access entitlements to eliminate the double counting of available water from a connected source as if surface and ground water were separate pools of water. 

Under the Act, the Commonwealth entered a funding agreement with New South Wales in which the State would impose reductions on groundwater licenses during the process of converting old bore licenses to aquifer access licenses to achieve the goals of water planning.  Massive collaborative planning efforts were undertaken to determine water supplies and relative allocations between consumptive and environmental uses.  Despite reductions of up to 70%, constitutional challenges by water users failed on the basis that water use has always been subject to government authority to regulate, thus nothing was taken from the water user that the government did not already possess. 

The western United States chose a different path and the experience in Idaho serves as a useful example.  Idaho adopted the doctrine of prior appropriation for both surface and ground water and as the late comer on the block, groundwater use is generally junior.  With massive increases in the development of groundwater in Idaho’s Eastern Snake Plain (now the third most productive irrigated agriculture region in the United States), the cumulative effect of pumping began to be apparent to surface water users as early as 1990. Two decades of litigation would be required to sort it out.  Although some efforts at a state funded, planning style approach to augment supplies (rather than reduce use as in Australia), were attempted, in the end Idaho concluded that this was better addressed as a matter of private property.  The state courts narrowed the issues by allowing adjustment of legal principles developed for surface water to account for the differences in the groundwater resources.  Cumulative, not just seasonal, impact would be the basis for identifying harm.  Models, rather than direct evidence, could be used to identify the existence of and estimate the magnitude of a well-to-surface diversion connection.  Given the absence of a 1-1 correlation between groundwater pumped and down gradient surface water impact, well owners could avoid curtailment by providing make up water through a mitigation plan. 

It is far too soon to say whether the planning approach of Australia or private approach of Idaho will have the best results.  The planning approach may miss some of the subtle local differences and thus either over or under curtail water use.  The private approach may ignore long term impacts creating problems down the road.  If I were a betting woman, I would say the two locations are likely to use various settlement and market tools to address the inadequacies of both extremes and will converge on a workable system that lies somewhere in between.  Let’s hope they do it in time.

https://lawprofessors.typepad.com/land_use/2015/03/water-down-under-a-report-from-australia-by-barbara-cosens-post-7-conjunctive-management-down-under.html

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