Best if printed in landscape.
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
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 --
(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.
1-- Legal doctrines for appropriating groundwater; pp. 325-341
- Groundwater: water-saturated
zone of the soil; zone contains more water than just the moisture needed
to support plant life.
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).
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
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
entitled to withdraw groundwater?
much groundwater can I withdraw? Am I liable if my pumping causes my
neighbor to not have access to the groundwater?
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
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.
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.
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.
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
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.
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.
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.
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
- 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
- most states rebuttably
presume that underground water is percolating (and thus are not part
of an underground stream).
of Prior Appropriation Doctrine to Groundwater
I entitled to the groundwater because I have been using it longer than
the other users? Does prior appropriation theory apply to groundwater?
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
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
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).
non-appropriation states use groundwater permits to supplement the other
legal theories (e.g., reasonable use, correlative rights).
of wells. See N.D.A.C.
Article 33-18; also N.D.C.C.
chapter 43-35 and N.D.A.C.
use of geothermal energy regulated?
2 -- Managing Groundwater Use; pp. 341-352, 355-359
- Groundwater accumulates
from precipitation, stream flow, return flow to groundwater, artificial
- Groundwater is
removed by natural discharge, artificial drainage (wells), interconnecting
- 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.
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
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.
withdrawals need to be reduced in the future, which users will need to
reduce their pumping? How will the pumping rates be controlled?
much groundwater will the state allow to be withdrawn?
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
- 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
- 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?
yield - amount of water that can be pumped on an annual basis while
maintaining reasonably stable water table.
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?
mining - withdrawing at a rate that lowers the water table; should
this be prohibited or managed?
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?
we tolerate groundwater mining during dry spells as long as there is an
opportunity for the aquifer to recharge (raise its water table) during
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?
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
3 -- Protecting means of Diversion; pp. 375-385
Also see http://www.ndsu.nodak.edu/instruct/swandal/aglawtextbk/chapters/waterlaw/PriorAppro5.html
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?
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?)
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.
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
- 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, ???,
- 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.
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.
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?
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
- 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
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?
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.
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?
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?
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
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
do we know we have reached the lowest tolerable level for the water table?
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
- 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
- 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
- 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
- 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,
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?
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.
prescriptive rights - does this doctrine lead to excessive pumping; that
is, pump as much as you can now to maximize your prescriptive water right?
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.
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
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?
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
adjudications of groundwater are not statutorily authorized, as they are
for surface water.
state legislatures direct groundwater usage?
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
- 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.
management statutes are intended to resolve problems arising from application
of common law doctrine.
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
- pay for exercised rights as well as unexercised riparian rights in groundwater.
Oklahoma approach to managing groundwater.
I liable for land that settles after I have removed the groundwater?
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.
drops when supporting underground water is removed. What is negligent
- It appears that
the negligent aspect of the English rule applies primarily to land subsidence;
not to declining water table.
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."
applies prior appropriation doctrine to surface water and integrated groundwater,
but applies a modified doctrine to groundwater that is not connected to
my surface water right allow me to tap the integrated groundwater source
before the water reaches the surface?
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
- 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.
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.
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?
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
- 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
- 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
- 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.
March 20, 2007