Best if printed in landscape.

Materials to be studied (based on 7th ed.)

Topic 1 -- Legal doctrines for appropriating groundwater

Pp. 325-328 -- overview of nature of groundwater
Pp. 329-337 -- Michels case and notes; traditional doctrine for allocating groundwater
Pp. 337-341 -- Dority case and notes; application of prior appropriation doctrine to groundwater

Topic 2 -- Managing groundwater use

Pp. 341-346 -- overview of groundwater recharge and depletion
Pp. 347-352 -- Fundingsland case and notes; effort to manage groundwater depletion
Pp. 355-359 -- additional notes on managing groundwater depletion

Topic 3 -- Protecting means of diversion

Pp. 375-377 -- additional notes on nature of groundwater
Pp. 377-385 -- Andrews case and notes; reasonable means of diversion

Topic 4 -- Impact on other water sources

Pp. 385-388 -- notes on connection between surface water and groundwater
P. ??? -- paragraph on "delay in restoring stream flow"
P. 401 -- further comment on "the time dimension of this problem"

Topic 5 -- Transfer of groundwater rights

Pp. 405-408 -- notes on transfer of water rights

Topic 6 -- Other topics

Pp. 408-413 -- Niles case (not included in Gould's 7th ed., see case on p. 408) and notes; issues relating to groundwater as a nuisance and artifically recharging groundwater

This is a long list but only five cases; there is considerable material explaining groundwater and related issues; also discussion/review of some issues already addressed as part of studying prior appropriation doctrine.

Topic 1-- Legal doctrines for appropriating groundwater; pp. 325-341

Some terminology

• Groundwater:  water-saturated zone of the soil; zone contains more water than just the moisture needed to support plant life.
• Aquifer:  geolocial formation that contains groundwater.
• Water table:  top of an aquifer.
• Artesian pressure: groundwater under sufficient natural pressure to rise to the surface of the earth through a well or natural opening.
• Cone of depression:  lowering the water table in the area immediately surrounding a well; the area is not immediately refilled (recharged) because the flow of groundwater is inhibited by the geologic formation (soils, rocks, etc).

  • See USGS Ground Water Glossary

  • Also USGS Water Basics Glossary

Why groundwater poses unique legal issues (relative to surface water):

• Hidden from sight; difficult to measure quantity and location, or to observe and understand impact of withdraws.
• Groundwater consists of both annual recharge and long-term accumulations; thus use of water draws from both sources.  To the extent that withdraws exceed recharge, the long-term accumulations are being "mined" or depleted.  Depleting groundwater cannot go on without change either caused by policy or law, or by the natural consequence of water no longer being available.
• Cost of pumping water to the surface -- the lower the water table, the more it costs to capture (pump) the water.  As withdraws lower a water table, wells must be extended -- increasing both capital and operating costs.
• Groundwater flows slowly compared to surface water; adjacent water will not immediately replenish an area of an aquifer that has been drawn down as a resulting of withdraws.

• Also, groundwater and surface water are interconnected; e.g., surface water will percolate into the soils and recharge an aquifer, and groundwater rises to the surface through natural opens and seepage (e.g., springs).

Information about Groundwater Resources

• Internet service with maps of North Dakota water resources (ND State Water Commission web page)
  • "The State Water Commission Map Services are a variety of internet map servers with various themes. Currently there is one general map service which uses the Water Commission's vast data resources such as water data locations, drillers logs, aquifers, and precipitation info to integrate with our spatial data holdings including aerial photography, geo-political boundaries, transportation, and hydrographic features. Look for additional specialized map services in 2006."
  • See http://mapservice.swc.state.nd.us/index.html
• Groundwater Atlas of the United States
• Map of the High Plains Aquifer (Ogallala)

Am I entitled to withdraw groundwater?

How much groundwater can I withdraw?  Am I liable if my pumping causes my neighbor to not have access to the groundwater?

• Allocation or management of groundwater was addressed similarly to surface water under the riparian doctrine (see next chapter).  This practice extended into the western states even though those jurisdictions were adopting the prior appropriation doctrine to address surface water issues.  As a consequence, some western states were applying prior appropriation doctrine for surface water and aspects of riparian doctrine to groundwater.  This distinction became cumbersome as we improved our understanding of the interconnection between groundwater and surface water.  This first case provides an overview of how groundwater issues were initially addressed.

State v. Michels Pipeline Construction, Inc., Wisconsin, 1974 (p. 329 of Gould's 7th ed.)

• City began pumping water from wells to dewater the soil so a sewer could be built. This caused private wells to dry up and damage to buildings (due to subsidence of the soil).
• Trial court dismissed complaint for no cause of action (for interference with ground water).
• Court distinguishes between percolating groundwater and underground stream.
• The court also summarizes various rules for resolving percolating ground water disputes. The court adopts the Restatement rule.
• absolute ownership (English or common law) -- person who owns the surface can use as much water as desired (on overlying land and non-overlying land) without liability to neighbors (rule of capture); the right to withdraw water can be transferred to another; only limitation is that the damage to the neighbor cannot be done with malice, nor can the use of water be a waste. This doctrine is analogous to riparian doctrine in that owning adjacent land (that is, overlying surface in the case of groundwater) entitles the owner to use the groundwater.
• reasonable use -- limited to amount of water needed for a useful or beneficial purpose on the overlying land (even if others are injured); use on non-overlying land is limited to "not injuring adjoining landowners;" that is, may use the water on other (non-overlying) land as long as persons with overlying land are not injured.
  • reasonable use theory does not protect a water user from the actions of an adjacent water user who is applying the water only to their overlying land; reasonable use theory primarily protects a water user from the actions of another water user who is applying the water to non-overlying land.
• correlative rights -- all owners of overlying land are co-equals, and no one can extract more than their share, even for use on their portion of the overlying land, if other owners of overlying land are injured; this theory arguably uses the reasonable use theory as long as there is no water shortage; if that is true, the limitation under the correlative rights theory is triggered only if there is not enough water for all uses on the overlying land owners; this doctrine holds that there is a limit to use on non-overlying land AND overlying land.
• The court reinstated the complaint and remanded the case.

Restatement of Torts -- landowner who applies the water to a beneficial use is not liable for damages unless 1) the withdrawal of groundwater unreasonably causes harm through lowering the water table or reducing pressure (whether or not the harmful use is on overlying land), 2) the withdrawal exceeds the owners' reasonable share of the supply; or 3) the withdrawal has a direct and substantial effect upon a watercourse and unreasonably causes harm to a person entitled to the use of that water.

Why are these issues addressed in the "restatement of torts?"

• Water rights have some characteristics of other property rights.  Also, the law initially held that proximity of land to the aquifer entitled the surface owner to use the water (similar to riparian doctrine); thus your actions that interfere with my use of water that I am entitled to is an interference with my "property" right and my recourse is through the legal theory of tort law.
• Note that these doctrines are based on common law. This is not uncommon in our legal system, but for this area of the law, it appears that attempts to codify the common law have not progressed as far as in some other areas of the law, including prior appropriation doctrine for surface water.

The theories of reasonable use and correlative rights are often blended by the courts.  Under these various theories, do I own the groundwater?

• absolute theory -- you are the owner
• other theories -- you are not the owner

Underground streams:

• have a bed, banks and current of water, but an underground stream does not have to be free flowing in a cavernous opening; however, the water does need to be in a narrow confined aquifer;
• include the subflow of a surface stream (that is water beneath the stream that supports surface stream and moves generally in the direction of the surface flow);
• are governed by the same doctrine as surface water; either riparian or appropriation doctrine; and
• most states rebuttably presume that underground water is percolating (and thus are not part of an underground stream).

Application of Prior Appropriation Doctrine to Groundwater

Am I entitled to the groundwater because I have been using it longer than the other users? Does prior appropriation theory apply to groundwater?

State v. Dority, New Mexico, 1950 (p. 337 of Gould's 7th ed.)

• Does the state statute, which declares groundwater as owned by the state, violate US and state constitutions on the grounds of 1) depriving persons of their property without due process, 2) deny them equal protection, and 3) take private property without just compensation?
• Defendants, without permits from the state, are irrigating land which lies above the aquifer. State seeks to enjoin them. State argues that users should have applied for and received a permit before using the water.
• Defendants argue the statutes are unconstitutional because the defendants owned the water (under the English or riparian doctrine) and that any subsequent statute which claims ownership of the water for the state is unconstitutional.
• Court explains that the water belongs to the public and is subject to appropriation for beneficial use; that is, the water is subject to state administration.
• This rule has been adhered to, many have relied on it, and changing it now would be disruptive.
• Patent to the land carries no right to use the water except as applied to reclaiming the land.

Essentially the court says this state (and other western states) adhere to prior appropriation doctrine for groundwater.  See N.D.C.C. §61-01-01, and 61-04. Permits are required (and exceptions are defined) according to applicable state statutes.

States face similar constitutional challenges when changing groundwater rules as they face when changing the laws for surface waters.

• Assumption is that most states started with the English rule for groundwater (absolute ownership, or groundwater is owned by the surface landowner).

Some non-appropriation states use groundwater permits to supplement the other legal theories (e.g., reasonable use, correlative rights).

Regulation of wells. See N.D.A.C. Article 33-18; also N.D.C.C. chapter 43-35 and N.D.A.C. Title 90.

Is use of geothermal energy regulated?

Topic 2 -- Managing Groundwater Use; pp. 341-352, 355-359

• Groundwater accumulates from precipitation, stream flow, return flow to groundwater, artificial recharge.
• Groundwater is removed by natural discharge, artificial drainage (wells), interconnecting aquifers.
• Capacity to store groundwater depends on volume of water-bearing materials and the spaces capable of receiving water.
• Removing and recharging groundwater -- if removal exceeds recharge, the quantity of groundwater that accumulated over the years is being depleted, the water table is dropping and the cost of pumping is increasing. If this practice continues too long, the aquifer will eventually be depleted.

Should groundwater removal (withdrawals or pumping) be limited to the amount of recharge, or would that leave too much water unused?  If removal is allowed to exceed recharge, how much reduction in the water table will be tolerated? 

Once the water table has reached a certain (but lower) level, will withdrawals need to be reduced so they equal recharge (thereby maintaining the water table at this lower artificial level)?  How much "lowering of the water table" will be tolerated and over how long of a period?  Impact of lower water tables include increased pumping cost, need to deepen shallow wells, alter the natural movement of groundwater, may decrease available surface water if the aquifer is interconnected with the surface, and may cause land to settle.

If withdrawals need to be reduced in the future, which users will need to reduce their pumping? How will the pumping rates be controlled?

How much groundwater will the state allow to be withdrawn?

Fundingsland v. Colorado Ground Water Commission, Colorado, 1970 (p. 347 of Gould's 7th ed.)

• Applied for permit to drill a well, denied on basis that area was over-appropriated, hearing was held, permit denied again, appealed to district court for trial de novo, judgment denied permit, appealed to state supreme court.
• Appeal was based on argument that decision was not supported by evidence and that it was arbitrary and capricious.
• Judgment affirmed.
• Commission is empowered to deny application if proposed use will unreasonably impair water rights from the same source, or create unreasonable waste.
• Trial court applied 3-mile test (3-mile radius around proposed well, 40% depletion over 25 years); factors considered include intermittent pumping, saturated thickness of aquifer, number of wells and their yields, draw down effect, amount of recharge from precipitation, groundwater inflow, excess irrigation, and other sources such as ditches and rivers.
• Groundwater is subject to prior appropriation but modified to permit full economic development of groundwater; this does not include maintenance of historical levels, nor does it permit unlimited "mining" of the aquifer; will not allow unreasonable harm to senior appropriators.

• States are developing, by statute, regulation, common law, or a combination thereof, policies to control the depletion (mining) of groundwater aquifers (storage). This is especially critical for non-rechargeable basins. Using groundwater (especially from non-rechargeable basins) means the water table will drop; thus the policies we establish must tolerate that new withdrawals will lower the water table. But at what rate will we allow a water table to decline?
• How large of an area should be considered in assessing an application for permit for a new well? The area is usually defined as "a specified distance in all direction from the well site." North Dakota specifies who needs to be notified (see N.D.A.C. 89-03-01-04) but does that also define the area to be considered?
• Are only the wells within this area considered, or must wells outside this area but that affect the area also be considered?  If we consider only the wells within the area, consider how shifting the proposed well site (so its area does not encompass other wells) may impact the decision?
• Note that the "rate of withdrawal" not only considers quantity and area, but also time.
• Do certain areas require more careful management?
• How do we coordinate our state policies when an aquifer lies under multiple states and the user is adjacent to the state line?
• What do we do when the groundwater is depleted? Stop using water? Begin importing water?
• If the aquifer I rely on is a resource and the resource is being depleted, can I take a deduction for the purpose of determining my income taxes?

Sustained yield - amount of water that can be pumped on an annual basis while maintaining reasonably stable water table.

Safe yield - amount of water that can be withdrawn annually without producing an undesired result; that is, without causing harm to the aquifer itself, to the quality of the water, or rendering the well economically infeasible (due to pumping costs).

• What is the difference between sustained yield and safe yield?

Groundwater mining - withdrawing at a rate that lowers the water table; should this be prohibited or managed?

But do we understand the aquifer well enough to make these determinations?

• What is the rate of withdrawal (both natural and artificial) and what is the rate of recharge? In quantifying the rate of artificial withdrawals, do we use the quantity specified in the original permit, or the quantity that is actually (historically) used?

Can we tolerate groundwater mining during dry spells as long as there is an opportunity for the aquifer to recharge (raise its water table) during wet periods?

Applying prior appropriation doctrine to groundwater, are junior appropriators required to discontinue use during times of shortage? How about a proportional decrease in permissible pumping rate among all appropriators? In the latter case, why apply the doctrine one way for surface water (junior appropriators are totally shut down) and another way for groundwater (all or most appropriators have to decrease their pumping rates, perhaps proportionally)?

• Does the ease at which water flows (or does not flow in the case of groundwater) justify a different "shutdown" strategy during times of shortage?

Mines often fill with groundwater; mine operators pump the water to the surface and discharge it to keep the mine operating; removing the groundwater often lowers the water table, adversely impacting adjacent surface activities that relied on the groundwater, such as a well for domestic purposes. Is a miner liable for lowering the water table as a result of removing water to keep its business operating? How about the liability of the government for constructing a project that lowers the water table (the McClusky canal in ND)?

Topic 3 -- Protecting means of Diversion; pp. 375-385

Also see http://www.ndsu.nodak.edu/instruct/swandal/aglawtextbk/chapters/waterlaw/PriorAppro5.html

Pumping groundwater creates cones of depression and lowers the water table, thereby requiring adjacent users to incur the costs of deepening their wells and lifting the water greater distances. Who should pay these additional costs? The user who lowers the water table? The user who has a shallow well? Should all the users pay the cost proportionally? Should each user bear his or her own cost?

Current Creek Irrigation Co. v. Andrews, Utah, 1959 (p. 377 of Gould's 7th ed.)

• Issue is whether prior appropriators have a vested right to continue receiving water by artesian pressure and whether subsequent appropriators must restore the pressure or bear the expense of replacing the water.
• Order of priority: Andrews and Fowkes spring, Andrews and Fowkes flowing wells, Andrews pump well, and Current Creek Company wells.
• Andrews and Current Creek must replace Fowkes' water.
• Prior appropriators are entitled to have subsequent appropriators restrained from drawing water and lowering pressure unless the subsequent appropriators bear the cost of replacing the quantity and quality of water.
• DISSENT: rule of absolute right to preserve pressure and means of diversion does not serve the fundamental purpose of providing the fullest conservation and development of water by making it available to all users in the most convenient and economical way.
• It is impractical to insure prior appropriators the amount of water, and the same pressure as their original appropriation.
• Prior appropriators should have the right to use the water and to such means of diversion as is reasonably efficient and does not cause undue waste (underuse?) of water.

Court applied prior appropriation doctrine in the strictest sense. Is that a reasonable approach? See the dissenting opinion.

• Protecting reasonable means of diversion -- each diverter must establish some reasonable means of diverting; this does not give a user the right to have an inefficient means of diversion; has the appropriator created a means of diversion that is reasonably adequate for the use?
• Retreat from policy of the principle case -- the rights of each individual should be subordinate to and correlated with reasonable conditions and limitations established by the law for the general good.
  • Repeated from earlier section under Prior Appropriation:  N.D.C.C. §61-04-06.3 Priority of appropriation does not include the right to prevent changes in the condition of water occurrence such as the increase or decrease of streamflow, or the lowering of a water table artesian pressure or water level if the prior appropriator can reasonably acquire the prior appropriator's water under the changed conditions.
• Domestic wells -- are they treated differently than wells used for other purposes?
• Paying the cost of improvements -- how about a policy that depends on facts of the case and would not necessarily always be one way or the other?
• Reasonable means of diversion -- priority does not protect the appropriator from a reasonable lowering of the water table; full economic development should not be blocked by burdening junior appropriators with the increased cost to existing appropriators; the need is to weigh potentially competing concerns about economic efficiency, wealth distribution, and other social goals; the real strength of the code lies in its procedures which enable officials to achieve the goals of maximum use consistent with the public interest for the maximum benefit of all its people.
• Putting our water resources to full use --

Topic 4 -- Impact on other water sources; pp. 385-388, ???, 401

• Groundwater is often naturally interconnected with surface water, but only recently and in only a few states has an effort been made to coordinate the administration of an integrated surface water-groundwater system.
• Often surface water was used first; then the groundwater was used (most likely reflects pumping technology and economics). As groundwater usage reduces surface water flows, the senior users are deprived of water by junior appropriators. Does this mean the pumping should stop?  How about requiring senior appropriators to also use wells? Who would have to pay the cost of developing and operating the wells for senior appropriators?
• Arizona uses reasonable use doctrine to allocate groundwater and prior appropriation to allocate surface streams and their subflow (that is, some groundwater). The definition of subflow will determine whether certain groundwater is allocated according to reasonable use or prior appropriation.

• Restatement of Torts defines groundwater and surface water as a single source when "withdrawal of groundwater has a direct and substantial effect on" the surface water.
• Need to recognize that stopping groundwater withdrawals will not immediately make surface water available; there is a substantial time lag due to the relatively slow movement of groundwater.
• In the case of a water well adversely impacting surface water, stopping the well (even immediately) may not produce results for the surface water for some time into the future.  Thus stopping the groundwater withdrawals would be a "futile call." A senior appropriator cannot shut down an injuring junior appropriator if the shut down will not lead to delivering water at the time and place of need. Is this different than a futile call for surface water?

Topic 5 -- Transfer of groundwater rights; pp. 405-408

• State granted city a permit to increase groundwater pumping over time to accommodate expected growth. This "groundwater" would be a combination of actual groundwater and surface water diverted to groundwater as a consequence of the pumping. State conditioned permit on city purchasing and retiring surface water rights over time to accommodate the increased pumping. Who will be forced to sell their surface water rights was not specified until later times. This failure to specify which surface rights would be acquired was considered illegal.
• Alternatives for moving water between surface and groundwater uses -- exchanges, by-pass pumping and artificial recharge.
• Economic incentives for users to change their water practices -- taxes, pricing.
• Artificial recharge has been used to maintain groundwater. More recent alternatives to artificial recharge include using "pricing" to transfer water uses from one type to another.

Topic 6 -- Other topics; pp. 408-413

Can I store water by recharging an aquifer?

Board of County Commissioners v. Park County Sportsmen's Ranch, L.L.P., Colorado, 2002 (p. 408 of Gould's 7th ed.)

• Sportsmen's Ranch applied for a permit to recharge an aquifer with the intent to store the water for later removal and use.
• The county and neighboring landowners argued the recharge would amount to trespass as the water moved into the portion of the aquifer underlying their land; they based their argument on the legal concept that the surface owner also owns the space above and below the surface. The county and landowners want Sportsmen's Ranch to be required to acquire an easement from them for this purpose. The county and landowners admit that recharge will not interfere with their use of their land.
• The court rejects the county and landowners' argument. The court relies on an Ohio decision that rejects the notion that a surface owner has absolute ownership of the space below the surface.
• The court relies on the notions that water is a public resource, the legislature has enacted a statute allowing reacharge of aquifers as a means to store water, and absolute ownership of subsurface rights would interfere with the state's goal "optimum use, efficient water management, and priority administration."

• Note the statement in the excerpt from the Ohio decision that comments on a landowner's right to air space.
• Would the Colorado decision likely be different if the recharge activity interfered with the landowners' current use of surface? Would the decision likely be different if the recharge activity interfered with the landowner's use of a water right (assuming they had a water right)?

Can I rid myself of ground water I do not want?

Alameda County Water District v. Niles Sand & Gravel Co., California, 1974 (not in Gould's 7th ed)

• Water district diverted water from creek so it could be stored in recharge areas and then percolate into a groundwater basin. A mining company had pits that flooded due to the recharge. The company removed the water by pumping it to the sea.
• Trial court denied the mining company's claim for inverse condemnation and enjoined it from pumping the water to the sea.
• Trial court stated that the mining company's land is subject to a "public servitude for water and water conservation."  The trial court also stated that the company's right to the water was only "a correlative and reasonably beneficial use" based on its status as an overlying landowner.
• Appellate court agreed with the trial court -- pumping the water from the pit and discharging it to the sea was an unreasonable use. Also, the idea that the land was burden with a public servitude had been recognized since 1903.
• No inverse condemnation -- the mining company is protected against arbitrary and unreasonable action by the water district (such as withholding consent to pump beyond the injunction) through access to the judicial system; also, imposition of correlative rights doctrine is an exercise of police power.

Public servitude -- required to allow water (groundwater?) to remain on your land even though it interferes with your activities? What rights do I have in my property?

Underground storage added as a beneficial use in some western states; that is, one can acquire the right to store water underground.  But what legal rights does the appropriator have to recapture the water, or does it once again become public water when it has re-entered the aquifer? What incentive would there be to recharge an aquifer if the water is then available to be appropriated by another user for another purpose?

Is it a trespass (private party) or taking (public entity) of my property when someone recharges the aquifer under my land? Or is my land subject to a servitude of having to accept water from natural (and artificial) sources that seep underground? How much artificially recharged water must I tolerate?

Recognize that this case is from the early 1970s, before the impact of environmental regulation (e.g., Clean Water Act) was in full effect.  If this fact arose today, there would likely be additional issues, such as can the water be pumped into the sea.

 

Materials not discussed

How do we know we have reached the lowest tolerable level for the water table?

Doherty v. Oregon Water Resources Director, Oregon, 1989 (p. 352 of Gould's 7th ed.)

• State statute authorizes water resource director to establish critical ground water area if supply is being overdrawn, declining excessively, or users substantially interfere with one another AND public health, welfare and safety require correlative controls.
• Consequence of establishing a critical ground water area is to control volume of water pumped from area wells, and to accept no new applications to appropriate water or expand/change existing uses.
• Petitioners are irrigators who argue water use should not be restricted under this statute as long as irrigated farming is profitable. They are that the public interest is served by using the water as long irrigated farming is profitable.
• Court rejects the argument.
• Sustained yield of ground water is the amount that can be withdrawn annually without exceeding the long-term mean annual water supply.
• Groundwater will be managed to provide for development and use of water within the sustained yield capacity.
• Court found that the statutory scheme does not support the argument that water be withdrawn for irrigation as long as irrigated farming is profitable. The statute is a restriction on water use; not a justification for depleting ground water.
• Statute does not require that entire basin be declared a critical ground water area; and there was no showing that regulating only part of interconnected basins would be ineffective or not able to promote public welfare, health, or safety.

Who should reduce their pumping when the water table drops? Can I acquire water rights by simply using the water; that is, can I acquire a right to groundwater through prescription?

City of Pasadena v. City of Alhambra, California, 1949 (p. 360 of Gould's 7th ed.)

• In a 40-square mile aquifer, the water table was steadily declining.
• Most users agreed to reduce their withdrawals to 2/3 of the amounts previously pumped. Court entered a judgment based on these stipulations.
• Water company that had not agreed to the stipulations appealed on the basis that the court should not have ordered them to reduce their pumping rate. The argument is that the way we acquired our water rights should influence whether we need to reduce our pumping.
• Rights to groundwater are established by riparian doctrine (my land overlies the aquifer), prior appropriation doctrine (I was the first one to use this water), and prescription (my many years of using this water has been adverse to your rights, but due to the passage of time, I now have the right to continue using the water).
• The court explained that rights to groundwater can be acquired through prescription, but since all users have been taking water in excess of safe yield, all have acquired prescriptive rights. This placed the users on a comparable legal level. Thus it was acceptable for the court to reduce all users by the same proportion.

Mutual prescriptive rights - does this doctrine lead to excessive pumping; that is, pump as much as you can now to maximize your prescriptive water right?

Limits to this doctrine: 1) cities can acquire groundwater rights by prescription by cannot lose them by prescription, 2) times of groundwater surplus interrupt the period for acquiring prescriptive rights, 3) those who may lose their rights through prescription must have notice of the adverse taking, and 4) riparian rights to groundwater cannot be lost through prescription.

Also, if all claims to the groundwater are based on riparian rights, use correlative rights doctrine to allocate the water, but base the correlative rights on current reasonable and beneficial use, not past use or time of commencing use.

When does the overdraft begin (because that determines when the adverse taking begins and thus influences when the prescriptive right is completed)? Does the overdraft begin when withdrawals exceed safe yield?

Most groundwater doctrines are based in common law; so are many of the related concepts, such as mutual prescription and safe yield. The exception would be states like North Dakota where statutory law directly addresses groundwater appropriations.

General adjudications of groundwater are not statutorily authorized, as they are for surface water.

Can state legislatures direct groundwater usage?

Town of Chino Valley v. City of Prescott, Arizona, 1981 (p. 365 of Gould's 7th ed.)

• City of Prescott drilled wells in Chino Valley, withdrew water and transported it to Prescott for municipal use. Prescott is located outside of Chino Valley.
• Subsequently, Town of Chino Valley began to draw water from the same source and sought an injunction against Prescott to stop its pumping and exporting.
• Later, the legislature established an Active Management Area that included both communities.
• Transport of water within a management area is allowed, so Prescott could continue using the water.
• Chino Valley claims the legislation took its property without due process or just compensation. The argument was that surface water belongs to the state but groundwater belongs to the overlying landowners, (in this case, Chino Valley) and any legislation that changes the status of the groundwater ownership violates the constitution.
• The court explains that the doctrine of reasonable use gives the overlying landowners the right to capture the water, but does not give them ownership of the water. Thus the legislation which addresses groundwater issues is constitutional as an exercise of police power.

Groundwater management statutes are intended to resolve problems arising from application of common law doctrine.

Groundwater management in Arizona - solve the overdraft problem by bringing in more water (i.e., Central Arizona Project), and through conservation and management. The statute was an alternative to the state's application of the reasonable use doctrine.

Condemnation - pay for exercised rights as well as unexercised riparian rights in groundwater.

The Oklahoma approach to managing groundwater.

Am I liable for land that settles after I have removed the groundwater? 

Friendswood Development Co., Smith-Southwest Industries, Inc., Texas, 1978 (not included in Gould's 7th ed.)

• Groundwater withdrawals lower water table and caused land to subside (that is, settle).
• Plaintiffs brought a tort action on the general rule that a landowner has a duty to not use his land so to injure others.
• In the past, courts adopted the absolute ownership rule (English rule; that is, can withdraw without limit as long as I do not intentionally harm another user).
• Legislature then addressed subsidence through existing (water) districts.
• English rule still prevails; the legislation was to provide for conservation and protection of public interests.
• Court modified English rule that "landowners have a duty to produce water from his land in a manner that will not negligently damage or destroy the land of others." Landowners are now responsible for damage that arises from negligence , waste or malice.

Land drops when supporting underground water is removed.  What is negligent pumping?

• It appears that the negligent aspect of the English rule applies primarily to land subsidence; not to declining water table.

Hubbard v. State, Department of Ecology, Washington, 1997 (not included in Gould's 7th ed.)

• State statute requires that permit for wells drawing from groundwater that is "significantly connected" to the river must be conditioned that the wells will not be operated when the river is below minimum in-stream flow.
• Irrigators contend that board erred in finding a significant connection.
• Evidence supports that this aquifer affects the surface water.
• Surface water appropriators are senior to subsequent rights for groundwater that is a source for the surface water.
• Minimum in-stream flows is considered an appropriation of the surface water and this appropriation arose before the groundwater appropriations.
• All appropriations (surface and groundwater) subsequent to the in-stream flows must be conditioned to maintain the instream flow. Any effect on the river during times of less than minimum in-stream flow conflicts with the senior instream flow appropriation.
• Granting the subsequent permits (to use the groundwater) with the conditions is acceptable.
• The statute requires the conditions when there is a "significant connection" between the groundwater and the in-stream flow; the statute does not require the conditions only "when the groundwater use has a significant impact on the surface water."

Colorado applies prior appropriation doctrine to surface water and integrated groundwater, but applies a modified doctrine to groundwater that is not connected to surface water.

Does my surface water right allow me to tap the integrated groundwater source before the water reaches the surface?

Templeton v. Pecos Valley Artesian Conservancy District, New Mexico, 1958 (p. 392 of Gould's 7th ed.)

• Applications to drill wells to change the point of diversion were denied. On appeal in district court, judgment was entered in favor of applicants. State engineer appealed to state supreme court.
• Applicants had water right to irrigate certain land from a river source, but the river water is no longer adequate for the irrigation project; applicants then applied for permit to drill wells to supplement the river water.
• There are two basins -- an artesian basin and a shallow water basin. The water source for the shallow water basin is the river which seeps into the ground and then re-surfaces at another place. At this time, the river does not flow on the surface except in times of flood. Prior to 1952, the river contained surface water. But since then, the water table has dropped due to draw down by irrigation wells.
• District court concluded that since the surface water and the water in the shallow basin are the same waters, the applicants can have their water quantity restored by means of the new wells and that doing so would not harm other appropriators.
• The state engineer argued that the proposed change in point of diversion is a new appropriation. The argument is based on the assumption that the surface water and the water in the shallow basin are not connected.
• "An appropriation follows the water to its original source, whether through the surface or subterranean streams or percolations."
• "An appropriator of water from a central channel is entitled to rely and depend on all the sources that feed the channel above the point of diversion clear back to the farthest limits of the watershed."
• Therefore, the applications were not a request for a new appropriation, just a request to follow the water to its source.
• The surface water and groundwater were not separate water sources and the lower court found that changing the method of extracting would not harm other users.

Water can be drawn from a well to supplement a surface water right only if the water being drawn by the well would otherwise reach the main channel and be a source of surface water at the original point of diversion; that is, the point where the surface water had been diverted by this appropriator in the past.

How effective is it to use a single legal system to allocate surface and groundwater? Can senior appropriators be required to improve their means of diversion? Do junior appropriators have to discontinue their use even though it would not improve the situation for senior appropriators?

Alamosa-La Jara Water Users Protection Association v. Gould, Colorado, 1983 (p. 396 of Gould's 7th ed.)

• Colorado was promulgating rules on curtailing its water users in order to assure that an adequate amount of water reached the New Mexico border, as agreed to in the Rio Grande compact.
• Dispute arose between well owners and surface diverters.
• Proposed rule was that all wells would be phased out unless they could demonstrate lack of material injury, provide a plan for augmentation, or "has a decree as an alternate point of diversion."
• Water court disapproved the proposed rule, and state supreme court affirmed the water court's ruling, but remanded for engineer to consider policy of maximum utilization and reasonable means of diversion doctrine.
• Two aquifers -- a confined one that is recharged by surface water and an unconfined one that at some spots receives water from the confined aquifer; the aquifers and surface are connected.
• The surface streams have been over-appropriated for 80 years and farmers rely on wells and reservoirs.
• The proposed rules were disapproved by the water court -- state engineer could not impose a rule to reduce well usage except if the user could prove an exception; instead the engineer was required by the statute to determine for each well whether its use would cause material injury to others. Also, the operation of the wells would reduce evapotranspiration loss and thus result in a substantial quantity of salvaged water.
• Supreme court did not agree with water court's interpretation of the statute -- the purpose of the statute was to prevent futile curtailments, not erect a procedural roadblock; supreme court affirmed the decision but not the reasoning; "it may be presumed that underground diversions materially injure senior appropriators."
• It is proper to consider a reasonable-means-of-diversion requirement as a method of maximizing utilization of integrated underground and surface waters; the proposed rules cannot place the entire burden of reducing water usage on junior appropriators.
• Surface stream (senior) appropriators may be required to withdraw underground water tributary to the surface stream in order to satisfy their surface appropriations; "but senior appropriators cannot be required to improve their extraction facilities beyond their economic level."
• The objective of maximum use administration is optimum use which is achieved only with proper regard for all significant factors, including environmental and economic concerns.

Last updated March 20, 2007

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