Thursday, May 23, 2013

Dellapenna on Groundwater

DellapennaJoseph Dellapenna (Villanova) has posted A Primer on Groundwater Law (Idaho) on SSRN.  Here's the abstract:

The greater part of fresh water on the planet Earth is under ground and most of that qualifies as "groundwater" in the sense of water available to be pumped to the surface for human exploitation or consumption. This water is subject to a wide range of conditions of occurrence that reflect the great variations in porosity and permeability of the earth’s crust. Its rapidly growing importance as a source of water for agricultural, ecological, industrial, and municipal use around the world has resulted in the major actors in water politics and policy have debated the issues and problems involved in the development and use of groundwater.

The creation, by courts in the United States and England of the common law of ground-water in the nineteenth century was steeped in ignorance. This problem was perhaps best ex-pressed in the Ohio decision of Frazier v. Brown, in which the court stated that "the existence, origin, movement and course of such waters, and the causes which govern and direct their movements, are so secret, occult and concealed, that an attempt to administer any set of legal rules in respect to them would be involved in hopeless uncertainty, and would be, therefore, practically impossible" (emphasis added). To scientists, the relationship of groundwater to surface waters now is a well-known fact. Unfortunately for the future congruity of law and science, the courts in most jurisdictions had spoken of the early common law decisions as rules of property. Courts therefore were reluctant change the rules to bring them into conformity with later scientific knowledge. Yet the explosive growth of groundwater extraction made possible by the high-pressure centrifugal pump created crises in some areas where groundwater demand out-stripped groundwater supply. Eventually, most courts and legislatures became more willing to define the relations of parties concerning their interests in groundwater consistently with recognized scientific knowledge of hydrology and geology.

Because of the relatively recent emergence of groundwater as a field of scientific knowledge and of large-scale economic exploitation, as well as concern over the unsettling of property rights, the law relating to groundwater long remained relatively undeveloped and exhibited considerable confusion. As Mark Goodman, commenting on the state of groundwater law in Arizona in 1978, summed it up, "The history of [groundwater law] is as thrilling as ignorance, inertia, and timidity could have made it." Not the least of the continuing disconnects between water science and water law is the continuing application, in most states, of different bodies of law to surface waters and to groundwater even though they are all part of single hydrologic cycle. This approach carries over to groundwater itself where the rule persists that water flowing in an underground stream is subject to the law applicable to surface waters, while "percolating" groundwater (water seeping through interstices in the soil or rock) is subject to the law applicable to groundwater. This article discusses only the law applicable to groundwater as so narrowly conceived, and in particular to the law allocating groundwater so narrowly conceived to particular users and uses. Today there are five different theories for allocating percolating groundwater to particular users, theories that are reviewed in this article: 1) Absolute dominion (also called "absolute ownership" or "the rule of capture"); 2) Correlative rights; 3) The reasonable use rule; 4) Appropriative rights; and 5) Regulated riparianism.

Steve Clowney

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