COMPARISON OF GROUNDWATER RIGHTS IN THE
UNITED STATES: LESSONS FOR TEXAS
by
SANJAYA RAJ JOSHI, B.E. Civil
A THESIS
IN
CIVIL ENGINEERING
Submitted to the Graduate Faculty
of Texas Tech University in
Partial Fulfillment of
the Requirements for
the Degree of
MASTER OF SCIENCE
IN
CIVIL ENGINEERING
Approved
Ken Rainwater
Chairperson of the Committee
John McEnery
Accepted
John Borrelli
Dean of the Graduate School
August, 2005
ACKNOWLEDGEMENTS
I would like to thank Dr. Ken Rainwater, Professor, Director of the Water
Resources Center, for his encouragement and guidance. I would also like to thank Gabriel
E. Eckstein, Associate Professor, School of Law, and Dr. John McEnery, Assistant
Professor of Civil Engineering, for their valuable suggestions and guidance. I would also
like to thank the Water Resources Center of Texas Tech University for funding this
project.
Special thanks go to all my friends who helped me with the report writing. I
would also like to thank many individuals in different states who responded to requests
for information on groundwater allocations, provided me with reference materials, and
directed me to different sources of information.
ii
TABLE OF CONTENTS
ACKNOWLEDGEMENTS...............................................................................................ii
LIST OF TABLES……………………………………………………………………...viii
LIST OF FIGURES……………………………………………………………………...ix
LIST OF ABBREVIATIONS…………………………………………………………….x
CHAPTER
I. INTRODUCTION ........................................................................................................... 1
1.1 Problem Statement............................................................................................... 1
1.2 Objectives ............................................................................................................ 2
II. LITERATURE REVIEW............................................................................................... 3
2.1 General Approaches to Groundwater Laws in the
United States……………………………………………………………………3
2.1.1 Absolute Ownership Doctrine................................................................. 3
2.1.2 Reasonable Use Doctrine........................................................................ 4
2.1.3 Restatement (Second) of Torts §858....................................................... 6
2.1.4 Correlative Rights Doctrine .................................................................... 6
2.1.5 Prior Appropriation Doctrine.................................................................. 7
2.2 State vs. Federal Law........................................................................................... 8
2.3 Groundwater Conservation Districts ................................................................... 9
III. REVIEW OF STATE GROUNDWATER POLICIES............................................... 12
iii
3.1 Study Approach ................................................................................................. 12
3.2 Study Results ..................................................................................................... 12
3.3 Summary of Groundwater Laws in the United States ....................................... 17
3.3.1 Alabama ................................................................................................ 17
3.3.2 Alaska ................................................................................................... 18
3.3.3 Arizona.................................................................................................. 19
3.3.4 Arkansas................................................................................................ 21
3.3.5 California .............................................................................................. 22
3.3.6 Colorado................................................................................................ 26
3.3.7 Connecticut ........................................................................................... 30
3.3.8 Delaware ............................................................................................... 31
3.3.9 Florida ................................................................................................... 32
3.3.10 Georgia................................................................................................ 34
3.3.11 Hawaii ................................................................................................. 34
3.3.12 Idaho ................................................................................................... 36
3.3.13 Illinois ................................................................................................. 37
3.3.14 Indiana................................................................................................. 37
3.3.15 Iowa..................................................................................................... 38
3.3.16 Kansas ................................................................................................. 39
3.3.17 Kentucky ............................................................................................. 41
3.3.18 Louisiana............................................................................................. 42
3.3.19 Maine .................................................................................................. 42
iv
3.3.20 Maryland ............................................................................................. 43
3.3.21 Massachusetts ..................................................................................... 44
3.3.22 Michigan ............................................................................................. 44
3.3.23 Minnesota............................................................................................ 44
3.3.24 Mississippi .......................................................................................... 45
3.3.25 Missouri .............................................................................................. 46
3.3.26 Montana .............................................................................................. 47
3.3.27 Nebraska ............................................................................................. 48
3.3.28 Nevada ................................................................................................ 49
3.3.29 New Hampshire .................................................................................. 51
3.3.30 New Jersey .......................................................................................... 51
3.3.31 New Mexico........................................................................................ 52
3.3.32 New York............................................................................................ 53
3.3.33 North Carolina .................................................................................... 54
3.3.34 North Dakota....................................................................................... 55
3.3.35 Ohio..................................................................................................... 56
3.3.36 Oklahoma............................................................................................ 56
3.3.37 Oregon................................................................................................. 58
3.3.38 Pennsylvania ....................................................................................... 59
3.3.39 Rhode Island ....................................................................................... 60
3.3.40 South Carolina .................................................................................... 61
3.3.41 South Dakota....................................................................................... 61
v
3.3.42 Tennessee............................................................................................ 62
3.3.43 Texas ................................................................................................... 63
3.3.44 Utah..................................................................................................... 75
3.3.45 Vermont .............................................................................................. 77
3.3.46 Virginia ............................................................................................... 78
3.3.47 Washington ......................................................................................... 79
3.3.48 West Virginia ...................................................................................... 79
3.3.49 Wisconsin............................................................................................ 80
3.3.50 Wyoming............................................................................................. 81
IV. LESSONS AND POSSIBILITIES FOR TEXAS....................................................... 83
4.1 Introduction........................................................................................................ 83
4.1.1 California .............................................................................................. 84
4.1.2 Colorado................................................................................................ 85
4.1.3 Kansas ................................................................................................... 86
4.1.4 Texas by Comparison............................................................................88
4.2 Regulatory Methods within the Groundwater
Conservation Districts in Texas………………………………………………..89
4.2.1 Rule of Capture ..................................................................................... 90
4.2.2 Correlative Rights ................................................................................. 90
4.2.3 Reasonable Use..................................................................................... 91
4.2.4 Prior Appropriation............................................................................... 92
4.2.5 Historical Use Concept ........................................................................................ 93
vi
4.2.6 Recent Senate Bills ............................................................................................... 94
4.3 Recommendations for Specific Challenges ....................................................... 95
4.3.1 Utilize Existing GCDs. ........................................................................................ 95
4.3.2 Creation of Additional Districts and
Annexation to Existing Districts….…………………………………..95
4.3.3 Proper GCD Funding ........................................................................................... 96
4.3.4 Cooperation Among GCDs Over a Shared
Aquifer………………………………………………………………. 96
4.3.5 Groundwater Court or Hearing Tribunal ........................................................ 97
4.3.6 Roles of TWDB and TCEQ ............................................................................... 97
V. CONCLUSIONS AND RECOMMENDATIONS ...................................................... 99
5.1 Conclusions .......................................................................................................................... 99
5.2 Recommendations for Texas ........................................................................................ 100
REFERENCES ............................................................................................................... 103
APPENDIX .................................................................................................................... 116
vii
LIST OF TABLES
1.
Summary of Approaches to Groundwater Rights in
the United States……………………………………………………………13
2.
General Information on Groundwater Conservation
Districts in Texas……………………………………………………………67
3.
Summary of Groundwater Rights and Ownerships
in the United States…………………………………………………………101
viii
LIST OF FIGURES
1.
Groundwater Doctrines in the United States.........……………………….…16
2.
Confirmed and Pending Groundwater Conservations
Districts in Texas…………………………………………………………...74
ix
LIST OF ABBREVIATIONS
AGMC
Arizona Groundwater Management Code
AMA
Active management area
CGS
Connecticut General Statutes
CRS
Colorado Revised Statutes
DNR
Department of Natural Resources
DRBC
Delaware River Basin Commission
GCD
Groundwater Conservation Districts
GMD
Groundwater Management District
gpd
Gallons per day
gpm
Gallons per minute
INA
Irrigation no-expansion area
K.S.A.
Kansas Statutes Annotated
MGD
Million gallons per day
n.d.
No Date
NRS
Nevada Revised Statutes
PGMA
Priority Groundwater Management Area
SB 1
Senate Bill 1
SB 2
Senate Bill 2
SWRCB
State Water Resource Control Board
TCA
Tennessee Code Annotated
TCEQ
Texas Commission on Environmental Quality
TWDB
Texas Water Development Board
USGS
United States Geological Survey
WMD
Water Management District
x
CHAPTER I
INTRODUCTION
1.1 Problem Statement
The history of water rights in the United States is full of conflicts over tangible
and intangible values of critical water sources. Surface water and groundwater rights are
seen as primarily State responsibilities, except for federal lands and selected interstate
and international waters. Establishment of a single set of legal rules and regulations for
common pool resources like groundwater is a great challenge because of site-specific
conditions (99). Different rules and regulations based on different doctrines may be
adopted by any State. The degree of attention given to the particular groundwater
resource depends upon its availability and value in various economic applications.
Moreover, the complex nature of groundwater has played a major role in its
allocation. In the 19th century, groundwater was considered to be “occult” and much less
understood than surface water. Challenges still exist in descriptive hydrogeology,
delineation of basins, recharge estimation, and exploration costs (54). The earliest laws to
allocate groundwater were vaguely defined on an unscientific basis. Today, groundwater
science and engineering has greatly advanced, but many states still adhere to allocation
principles based on land ownership or limited hydrologic conditions. Some states treat
surface water and groundwater quite similarly as property of the states. Other states still
rely on the courts to resolve conflicting issues. There is still no “one size fits all”
approach due to complexities in aquifer conditions, water use patterns, and depletion
impacts (47).
1
In Texas, management of groundwater resources is a complex challenge. Today,
groundwater reliability is facing serious limitations in many areas of the State because of
excessive pumping and water quality issues. Critics have long argued over the “Rule of
Capture,” which does not properly protect water rights of others. Some wish to maintain
the rule of capture to protect individual groundwater ownership, and to give groundwater
districts much greater power and funding to properly manage pumping. Others prefer
state ownership and control of groundwater similar to surface water, but any removal of
individual groundwater ownership right would likely lead to long judicial challenges. As
the Texas legislature and various water-related agencies consider possible updates to the
State’s approach to groundwater rights, it is worthwhile to consider the varied approaches
taken in other states.
1. 2 Objectives
The primary purpose of this thesis is to provide a summary of groundwater rights
doctrines applied in the fifty United States. Through this review, potential alternative
approaches for Texas are identified and discussed. Finally, a new Texas groundwater
rights approach is recommended.
2
CHAPTER II
LITERATURE REVIEW
2.1 General Approaches to Groundwater Laws in the United States
In this chapter, different laws and regulations governing groundwater rights in the
United States are discussed based on primary references published by the American
Water Works Association (99, 100). Apart from these references, various other books,
magazines, articles, state codes, websites, and personal contacts were used to gather
information on water rights in the fifty states. Various approaches to groundwater rights
were seen in different states. The existing approaches are listed below:
x
Absolute ownership / English rule / common law rule,
x
Reasonable use,
x
Correlative use,
x
Prior appropriation, and
x
Beneficial purpose doctrine / Restatement (second) of Torts § 858.
The following sections explain these approaches.
2.1.1 Absolute Ownership Doctrine
The absolute ownership doctrine simply states that the owner of the surface also
owns the groundwater beneath the land and can withdraw at any rate even if adjoining
property owners are harmed (21). This doctrine is also referred to as the Rule of Capture.
This doctrine, also known as the English or common law doctrine, was first stated in the
3
English case of Acton v. Blundell in 1843, and is still in practice in some eastern states
(Connecticut, Georgia, Indiana, Louisiana, Maine, Massachusetts, and Rhode Island) and
Texas. A negligent pumping exception to the absolute ownership rule has been engrafted
by the State of Texas, which means negligent pumping, causing harm to neighboring
landowners, is liable for the damage caused to neighboring landowners (86).
Simplicity and flexibility are the merits of this rule. No rules, permits, or
administrative agencies are required to govern the water use. If interference occurs, each
user must pay the cost associated with deeper pumping levels. Those who cannot follow
water down are forced out. Lack of security is the main disadvantage of this rule. Lack of
security is likely to deter investment and is the major reason cited by courts in rejecting
the doctrine. Inefficiency of the rule of capture was recognized during the early years, but
the groundwater pumping was not sufficiently widespread to require extensive legislative
modification of the rule at that time (86).
2.1.2 Reasonable Use Doctrine
In this rule, the landowner may generally withdraw and use groundwater from
beneath his property. However, if his use interferes with groundwater uses of neighboring
landowners, he is privileged to continue only if his use is reasonable. The landowner is
liable for harm caused to others by unreasonable use of groundwater. In this rule, a
landowner has only a qualified right, rather than an absolute right, to use groundwater.
The history of reasonable use dates back to 1862, when a New Hampshire court ruled that
a landowner had the right to use only a reasonable amount of groundwater and
4
recognized the rights of adjacent landowners (21). Under this rule, the landowner owns
the water. This rule is also known as the American Rule.
Many common law states abandoned the absolute ownership rule during the late
nineteenth and early twentieth century and adopted reasonable use (86). Currently, this
rule is followed by Alabama, Arizona, Arkansas, Florida, Illinois, Kentucky, Maryland,
Mississippi, Missouri, Nebraska, New Hampshire, New York, North Carolina,
Oklahoma, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia. For
example, in 1983 the Illinois legislature declared the rule of reasonable use as “the rule of
water to meet natural wants and a fair share for artificial wants” (86).
The merit of this rule is that it provides more security. It protects existing
overlying users against well interferences or over-draft problems. Interference occurs
when the cone of depression for two or more wells overlap, reducing water available to
each of the wells. The determination of “What is reasonable or beneficial?” is the crux of
this doctrine (99). Generally, any non-wasteful use of water for a purpose associated with
the use of land from which the water is withdrawn is reasonable. Conversely, any nonoverlying use is unreasonable if it interferes with the use of water by overlying users.
Because of the overlying use criteria used in determining reasonability, the reasonable
use doctrine does not resolve disputes between parties when all are making overlying
uses. If all uses are overlying, all are reasonable and can continue. In such a case, the
doctrine of reasonable use becomes a rule of capture. This rule presents a formidable
obstacle to non-overlying uses that can interfere with overlying uses, no matter how
reasonable or beneficial the non-overlying uses might be.
5
2.1.3 Restatement (Second) of Torts §858
This rule is a combination of English and American rules (25). This rule was
evolved as a result of work of eminent scholars and practitioners under the auspices of
the American Law Institute in the Restatement (Second) of Torts §858. Under this rule,
groundwater is owned by the landowner. It combines the English concept of non-liability
with the American standard of reasonable use. Under this law, liability can arise where
x
withdrawal interferes with the withdrawal of other owners by lowering the water
table,
x
withdrawal interferes with lakes, rivers, and streams that depend on groundwater,
or
x
withdrawal results in pumping more than the owner’s reasonable share.
The main objective of this rule is to give protection to small well owners from excessive
economic cost that may result due to the excessive pumping by high capacity wells (86).
This rule is followed by Michigan, Ohio, and Wisconsin. Also, it considers interaction
between surface water and groundwater.
2.1.4 Correlative Right Doctrine
Under this rule, the right to make use of overlying water is not absolute but
relative to the rights of other overlying users (99). The rights of all landowners over a
common basin, saturated strata, or underground reservoir are coequal or correlative, and
one cannot extract more than his or her share of the water, even for use on her/her own
and, if others’ right are injured. The share is usually based on the amount of acreage
6
owned relative to the total area overlying the aquifer (27). Under this rule, the water
belongs to the landowner.
Courts in humid and semi-arid states began to adapt this rule to replace common
law rights or to administer permit systems (86). At the present time, this rule is in practice
in Arkansas, California, Delaware, Hawaii, Iowa, Minnesota, New Jersey, Oklahoma, and
Vermont. It is used primarily when the groundwater supply is insufficient to satisfy the
needs of all overlying users. All overlying users have an equitable share of groundwater
basin. Users outside the basin can extract water only after obtaining appropriative rights.
These rights may be granted if surplus water exists in the basin and this surplus water is
not needed by overlying users (86).
When there is overdraft in the basin, the use is restricted to overlying users.
However, determination of existence of overdraft is crucial to administration of the
correlative right rule (86). Sharing of rights on the basis of acreage owned may not
always be reasonable as value of water varies in different land development areas (27).
The correlative rights rule sets limits on the use of common property resources which is a
major advancement over the reasonable use rule (86).
2.1.5 Prior Appropriation Doctrine
Under prior appropriation, groundwater belongs to the State. The simple way to
explain this system is “first in time, first in right” (100). This system is also called the
rule of priority because taking water from the source and applying it to a beneficial use in
a chronological order creates a preference, which, together with the continued right of
7
use, constitutes the water right. Priority plays an important role in allocation of the
groundwater. The first person to appropriate water and apply that water to use has the
first right to water within a particular aquifer system. This system is sometimes called an
appropriation system.
This rule is mostly followed by western states like Alaska, Colorado, Idaho,
Kansas, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah,
Washington, and Wyoming. Its principal use is to limit the number of permits issued to
prevent over-withdrawal of the aquifer. By specifying limitations like pumping rate, wellspacing requirements, and well-construction standards, and by refusing permits when
appropriate, the administering agency manages groundwater consumption (54). In areas
where there are no significant problems, permits are issued more or less as a matter of
course. In completely appropriated areas, permits may be justified only after a careful
investigation into the effect of the proposed well.
The main drawback of this doctrine is that senior users may demand prohibition
of new users as new pumping would cause some effects to existing users. This bias may
be against individual equity and limit economic productivity of society. It is, no doubt,
unfair to deny rights to junior users who have no other available source (86).
2.2 State vs. Federal Law
In the United States, water rights are matter of State law rather than federal law.
Hence, the federal government has given authority for creation, definition, and control of
private water rights to each state. As a result, each of the 50 states has its own system of
8
water rights. However, the federal government has paramount power over navigable
bodies of water. State law primarily deals with quantity, and federal laws deal with
quality (100).
Recently, the federal government’s role in water policy is to finance large-scale
water projects, protect public water uses, determine constitutionality of state restriction
on interstate water transfers, and resolve interstate water disputes. All these functions
often have been undertaken by the federal government in response to either a state
request or a federal obligation to protect public interests neglected in state water
allocations. Through federal statutes such as the Endangered Species Act and Clean
Water Act, the federal government can give protection to these public interests (36). The
federal government does not connect to groundwater rights even if the aquifer crosses
state lines.
2.3 Groundwater Conservation Districts
A groundwater conservation district (GCD) is a local unit of government
authorized by the legislature and ratified at the local level to manage and protect
groundwater. Groundwater conservation or management districts are used in many states
to provide local data collection, rule making, education, and resource allocation in
smaller political jurisdictions. Any groundwater rights approach can be supplemented and
modified through activities of the local districts (47). Some states apply groundwater
management programs statewide while others limit management to specific areas known
as groundwater management areas. The specifics of groundwater management areas vary
9
from state to state or even within states, but their formation are fairly consistent as most
originate from legislation that enables the designation of management areas. Management
areas are often designated in areas that have severe groundwater problems, and
groundwater withdrawals are usually managed differently within the management areas
than in the rest of the State (12).
The groundwater conservation district approach allows regulation based on some
or all of the following criteria.
x
Hydrologic heterogeneities in the aquifer are taken into consideration. If the local
recharge is high, the withdrawal rate may be increased.
x
Groundwater districts can set goals to minimize drawdown by setting production
limits based on acreage.
x
Groundwater districts may choose to grant or deny permits based on impact to
groundwater, surface water resources, and existing permit holders.
x
Permits issued by the groundwater districts may be subject to change as necessary
to prevent waste and conserve the resource.
x
Some districts establish specific well construction standards and well closure
standards to address certain water quality concern
x
Reporting requirements such as well registration, drilling logs, and groundwater
production reports are important in management of GCDs which collect a variety
of information and data important to the district’s management programs.
x
Districts do not have statutory authority to limit production based on type of use
such as domestic, agricultural, mining, recreation, and other beneficial uses. The
10
district, however, may restrict or prohibit lower priority uses when certain
amounts of water-level declines are experienced.
Details about the groundwater conservation districts in Texas are explained under
groundwater law review of Texas in section 3.3.43.
11
CHAPTER III
REVIEW OF STATE GROUNDWATER POLICIES
3.1 Study Approach
Information on existing groundwater doctrines, permit requirements, recent
legislative modification, interbasin transfers, and dispute resolution were gathered from
state codes, official websites, journal articles, textbooks, conference proceedings, reports,
newsletters, and personal communication. For those states from which the information
was not readily available through literature reviews, an e-mail requesting the information
was sent to the contact person whose address was given in the official website of the
appropriate state agency. In the e-mail inquiry, the project was briefly described and a
brief questionnaire was included.
3.2 Study Results
Responses to the e-mails were obtained from most of the personnel in different
states. The responses ranged from brief statements to multiple pages detailing the
requested information. Some of the states even sent a hard copy of complete water codes
and other related documents to provide the requested information. Also, related
information was obtained from different websites, journal articles, textbooks, conference
proceedings, reports, and newsletters. A compiled study result is shown in Table 1.
Figure 1 shows the groundwater rights approaches in the United States. Detailed study
results of each state based on various references are provided in section 3.3.
12
16
CA
OR
WA
NV
ID
AK
AZ
UT
HI
CO
NM
WY
HI
HI
TX
NE
SD
ND
HI
OK
KS
HI
LA
AR
MO
IA
MN
MS
IL
WI
TN
AL
SC
PA
VA
NJ
NY
MD
DE
VTNH
MA
CT
ME
RI
Restatement of torts § 858
Reasonable/correlative use
Reasonable use
Prior appropriation
Correlative rights
Absolute/reasonable use
Absolute ownership
NC
WV
FL
OH
GA
MI
KY
IN
MI
Figure 1. Groundwater Allocation in the United States
(Not to Scale)
MT
In the table, the first column heading represents the states. The second column
represents the type of groundwater rights currently in practice in different states. The
third column, which represents groundwater allocation preferences, explains whether
preference is given to different water use types such as domestic water uses, agricultural
water uses, industrial water uses, mining water uses, municipal water uses, and other
uses. The fourth column explains whether water use permit is required. The fifth column
identifies time limits for permits. In some of the states, no time limits are given. The sixth
column shows whether there have been recent significant legislative changes in the water
right laws. Interbasin transfer refers to transfer of surface water or groundwater from one
basin to another. The column for dispute resolution explains which office or agency is
responsible for settling disputes related to water. Detailed information of the
administrative agency of each state is given in Appendix I. Further explanation of each
heading for each specific state is given later in section 3.3.
3.3 Summary of Groundwater Laws in the United States
3.3.1 Alabama
The groundwater allocation type in Alabama is reasonable use (100). The
landowner owns the water. There exists no preference for groundwater allocation in this
state, which means preference for different water uses such as domestic, agricultural,
industrial, or mining are not taken into consideration. However, beneficial users of water
need to obtain permits to use groundwater. Beneficial use must be justified by
x
public water systems as defined by the Department of Environmental
Management,
17
x
users extracting 100,000 gallons or more per day, and
x
irrigators with the capacity to pump 100,000 gallons or more per day.
The permit issued by the Alabama Department of Economic and Community Affairs has
an expiration date set in accordance with the type of permit issued, and the time frame
usually is between five to ten years (100). This limit can be renewed depending upon the
situation. If the permit is issued under “certificate of convenience and necessity,” then its
life span would be 40 years or less.
Interbasin transfers of groundwater are evaluated based on legal criteria such as
availability of water in donor basins, impact on the receiving and donor basins, and
economical and social consequences. Despite the fact that this issue is being addressed by
the Office of Water Resources, no concrete rules and regulations have been established
(100). Disputes regarding competing groundwater use are handled by the general state
court.
3.3.2 Alaska
Alaska applies the prior appropriation rule (75). The State owns the groundwater,
and the Alaska Water Code explains that water is reserved to the people. According to
this code, “wherever occurring in a natural state, the water is reserved to the people for
common use and is subject to appropriation and beneficial use and to reservation of instream flows and levels of water” (25). As a rule, if land is being sold, its water rights
transfer with the land to the new owner, unless the Department of Natural Resources
(DNR) approves its separation from the land. Water is a common property resource, and,
18
as such, landowners do not have automatic rights to groundwater or surface water. Using
water without a permit or certificate does not give the user a legal right to use the water.
A person with prior water rights has priority to use water over persons who later file for
water rights from the same source (2).
A permit issued by the Alaska Department of Natural Resources is required for
groundwater extraction. To obtain a permit, the landowner must file an application to the
Alaska Department of Natural Resource. The permit and certificate of appropriation will
be granted once the application is processed and the full amount of water a landowner
can use beneficially has been established. The time limit for this depends on the quantity
and quality of groundwater in that particular location. A temporary water use permit may
be needed if the amount of water to be used is significant, but the use continues for less
than five consecutive years, and the water to be used is not already appropriated. This
permit does not establish a permanent water right, but does avoid conflicts with fisheries
and existing right holders.
There has been no recent legislative change regarding groundwater allocation in
this state. Interbasin transfer of groundwater is allowed in this state (75). Disputes
regarding groundwater are handled by the Water Resources Section of the Division of
Mining and Water Management of the Department of Natural Resources.
3.3.3 Arizona
Groundwater in Arizona is governed under the doctrine of reasonable use (13).
The State owns the groundwater. The 1980 Arizona Groundwater Management Code
19
(AGMC) seeks to conserve, protect, and distribute groundwater resources by providing a
framework for comprehensive management and regulation of withdrawal, transportation,
use, and conservation. The three specific goals of AGMC are to (i) control overdraft, (ii)
provide establishment of a means to allocate the State’s limited groundwater efficiently to
meet the changing needs of the State, and (iii) augment Arizona’s groundwater through
water supply development.
Groundwater in Arizona belongs to the public and is subject to appropriation and
beneficial use. The Arizona Department of Natural Resources issues groundwater use
permits and five years of non-use leads to forfeiture of groundwater right permits (25).
Arizona’s groundwater code established three levels of water management to respond to
different conditions: general provisions that apply statewide, specific provisions for
irrigation non-expansion areas (INAs), and strict provisions for active management areas
(AMAs) where overdraft is most severe. Outside AMAs and INAs, groundwater rights
are only limited to reasonable and beneficial use. With certain exceptions, a person may
not withdraw groundwater from a non-exempt well in an AMA unless the person obtains
a groundwater withdrawal permit (13).
In general, groundwater permits are required to withdraw water everywhere.
Groundwater withdrawal permits are categorized in the following groups.
x
Dewatering permits (issued under section 45-513)
x
Mineral extraction and metallurgical processing permits (issued under section 45414)
x
General industrial use permits (issued under section 45-515)
20
x
Poor quality groundwater permits (issued under section 45-516)
x
Temporary permits (Issued under section 45-517 and 45-518)
x
Drainage water permits (issued under section 45-519)
x
Hydrologic testing permits (issued under section 45-519.01)
Each permit mentioned above has separate requirements, priorities, and durations. A
permit issued may be granted for a period of up to 50 years, subject to renewal under the
same criteria used in granting the original permit (13).
There has been no recent significant legislative change in this state. Groundwater
transportation rules in Arizona are extremely complex (13). Groundwater may be
transported between the sub-basins. Within AMAs also, different rules exists for
withdrawals of groundwater. Groundwater that is withdrawn from groundwater basins or
sub-basins outside an AMA may not be transported directly or indirectly unless
specifically authorized, and any unauthorized transportation is subject to payment of
damages. Each basin has its own specific rules regarding groundwater withdrawn in its
area. Disputes are generally handled by Department of Natural Resource and General
Court (99).
3.3.4 Arkansas
The groundwater allocation doctrines followed by Arkansas are reasonable use
and correlative rights (100). Water rights are related to surface land ownership, but the
landowner must justify reasonable use. Seniority is rewarded if there are two or more
competing applications.
21
Regarding the groundwater permit requirement, the Arkansas Soil and Water
Conservation Commission is empowered to issue permits. As per Arkansas Groundwater
Protection and Management Act Section 402.1, all persons are required to obtain a permit
to use groundwater no later than March 1 for the prior water year beginning October 1
(6). Certain exemptions exist for individual household use and for water withdrawn at a
rate less than 50,000 gpd. The time limit for groundwater permit is 50 years (100).
There have been some changes in legislation regarding water allocation in this
state. Efforts have been made by the Arkansas Soil and Water Conservation Commission
to delegate water management powers to qualified local districts. All regulatory powers
are applied only in critical groundwater areas. Programs for water use reporting,
education and information, water conservation, cost-sharing, and the registration fees are
administered statewide. Interbasin, intrabasin, and interstate basin transfers may be
permitted based upon excess stream flow in the basin. According to the law, only 25 % of
excess water above current and projected needs in a basin is permitted for non-riparian
transfer. However, interbasin transfer of groundwater is not clear in this state (100).
Disputes relating to groundwater are generally taken to general state court.
3.3.5 California
Historically, the California courts applied both the English rule of absolute
ownership and the American Rule of reasonable use (37). In 1902, after the Katz case, the
court modified earlier opinions by departing from the purely American rule of reasonable
use and enacted the California doctrine of correlative rights. This doctrine provides a
22
sharing of the waters from a common source. In 1949, the case of Pasadena v. Alhambra
was decided by the supreme court of California, which added a new principle to longestablished correlative doctrine of California (14). Currently, the landowner owns the
groundwater and the rights are co-equal and correlative. Non-landowners can obtain
water from the property owners through appropriation and are considered junior water
right holders. In this state groundwater pumping are controlled in local level by counties
itself.
Groundwater in California is classified in three major categories (37). The first
one, definite underground streams, is that flow in a definite channel such as a cavern. The
second category is underflow of surface streams. This groundwater is a portion of the
flow in a surface stream watercourse. It consists of water in the soil, sand, and gravel
immediately below the stream bed and the lateral bank of the stream. It is essential that
the surface and subsurface flows be in contact and that the subsurface flow has a definite
direction corresponding to the surface flow. The third flow is percolating water, which is
water that infiltrates through the unsaturated zone to relatively deep aquifers.
In the present context, groundwater rights in California have been classified in
three basic headings as overlying, appropriative, and prescriptive. An overlying right is
analogous to that of riparian surface water right where the overlying landowners can
construct a well and extract water without limit unless a groundwater basin has been
adjudicated. An appropriative right involves the taking of groundwater for other than
riparian or overlying use. Prescriptive rights refer to those against either overlying or
appropriative right holders that ripen under adverse possession. Each right has a different
23
priority ranking. Rights of the overlying landowner are most important. The right of an
appropriator depends upon availability of surplus water. In the event of scarcity, the
appropriator must yield to the overlying owner unless he has gained prescriptive rights.
During scarcity, the rights are correlative between the owners so that each may use only
the reasonable share to meet his needs. “First in time, first in right” applies between the
appropriators (13).
In California, no single agency has comprehensive authority to define the
character or extent of groundwater or regulate groundwater statewide. State courts have
jurisdiction to determine some groundwater rights and to limit pumping through
adjudication, and so far 12 basins have been adjudicated. State courts have also played a
role in resolving discrete conflicts and comprehensive allocation plans. Despite all these
precedents, authority of the court is limited to determining existence, extent, and
character of groundwater user’s rights. In the event of scarcity, courts may limit pumping
to safe yield (13). Safe yield can be defined as the amount of naturally occurring
groundwater that can be withdrawn from an aquifer on a sustained basis, economically
and legally, without impairing the native groundwater quality or creating an undesirable
effect such as environmental damage (21).
Under authority of the State constitution for reasonable use and waste prevention,
the State Water Resource Control Board (SWRCB) can regulate groundwater. The State
determines which underground water can be converted to public use or controlled for
public protection. The State laws encourage water management at a local or regional
level. Districts may be created by special legislative acts and have included irrigation
24
districts, county water districts, water storage districts, reclamation districts, county water
work districts, drainage districts, water replenishment districts, levee districts, municipal
water districts, and water conservation districts. These districts operate by assessing
production and drilling fees, and participating in litigation to protect water quality.
Four counties, El Dorado County Water Agency, Kinghts Landing Ridge
Drainage District, Solano County Water Agency, and Tehama-Colusa Canal Authority,
have passed their own ordinances to regulate groundwater extraction. The main purpose
of these groundwater management plans is to clarify authority of local water agencies to
manage and regulate groundwater. The different plans include components relating to
monitoring and management of groundwater levels within the groundwater basin,
groundwater quality degradation, inelastic land surface subsidence, and changes in
surface water flow and quality which directly affect groundwater levels or quality. The
different local agencies must also work cooperatively with other public entities whose
service area or boundary overlies the basin. The groundwater management plans may
include the following:
x
Control of saline water intrusion,
x
Identification and management of wellhead protection and recharge area,
x
Migration regulation of contaminated groundwater,
x
Well abandonment and well destruction program administration,
x
Overdraft mitigation,
x
Replenishment of groundwater,
x
Groundwater storage and replenishment monitoring,
25
x
Identification of well construction policies,
x
Development of relationships with state and federal regulatory agencies, and
x
Review of land use plans that risk of groundwater contamination.
County groundwater management is seen as part of the municipal police power to enact
laws protecting public health, safety, and welfare. State law does not preempt county
regulation because no comprehensive state-wide regulatory scheme exists (13). State law
only prohibits the use of groundwater for certain purposes like golf courses if reclaimed
water is available and reasonably priced.
3.3.6 Colorado
The groundwater allocation type in Colorado is prior appropriation (13), as the
State of Colorado owns the groundwater. Domestic uses are given highest preference
during scarcity, followed by agricultural uses and manufacturing. Spurred by economic
development, the traditional prior appropriation system was modified when applied in
case of groundwater. With the passage of the 1965 Groundwater Management Act and
the 1969 Determination and Administration of Water Rights Act, the legislature
attempted to regulate pumping of groundwater and integrate surface water appropriation
with groundwater appropriations. The 1965 Groundwater Management Act differentiated
groundwater by location and effect on surface water. These acts protected prior
appropriations of groundwater and maintained reasonable groundwater pumping levels
(13).
26
The State Engineer and Colorado Ground Water Commission regulate the water
in this region. The State Engineer is responsible for groundwater diversion through
district superintendents, with State Court decrees. The State Engineer does not control the
daily administrative functions of all water rights. Field offices, known as Division
Engineer’s Offices, accomplish most of the work. There are seven division offices
located throughout the State in each major river basin. Groundwater well permitting is
one of the major duties of the State Engineer, who also provides technical support to the
Colorado Ground Water Commission in the exercise of its duties in the Designated
Basins which are generally located on the eastern plains of Colorado. Other duties
include providing assistance for the Board of Examiners of Water Well Construction and
Pump Installation Contractors. The doctrine of prior appropriation exists in Colorado and
the Division of Water Resources is authorized to control all water rights in the State in
order to make sure this doctrine is enforced. With the cooperation of various local
groundwater management districts, the Division of Water Resources operates a statewide
network to monitor groundwater wells.
Laws and regulations regarding groundwater in Colorado depend upon the
classification of groundwater (13). Groundwater in Colorado is classified first as
designated or non-designated. Designated groundwater is contained within a designated
groundwater basin, which are the areas of the State established by the Colorado Ground
Water Commission in accordance with Section 37-90-106, Colorado Revised Statutes
(70). Altogether eight groundwater basins have been designated in the Front Range and
in Eastern Colorado. Any district organized under Section 37-90-118 to 37-90-135 of
27
Colorado Revised Statutes (CRS) for the purpose of consulting with the Ground Water
Commission on all designated groundwater matters within a particular district is known
as a groundwater management district. Non-designated groundwater is located outside
the designated groundwater basins. Groundwater basins in these areas have been further
classified as tributary groundwater, non-tributary groundwater, and not non-tributary
groundwater.
In case of designated waters, the Colorado Ground Water Commission establishes
and regulates designated groundwater basins and holds hearings to determine extent of
the basins, and courts have no authority. The groundwater commission issues permits to
appropriate water from the designated basins and is also responsible for the
administration and control of pumping. It can also limit extractions that interfere with
prior appropriations and establish reasonable pumping levels to stop mining in these
specific areas (13).
Tributary waters, which are the water adjacent to and connected with streams,
represent water, which, if withdrawn, will deplete the natural stream’s flow within 100
years of pumping at the rate of 0.1 percent of the annual rate (13). In this case, water
courts have jurisdiction over this type of water, which is administered in conjunction with
surface water and is governed by prior appropriation rules. The State Engineer is
authorized to issue permits for new wells and regulates extraction to minimize the effect
of groundwater withdrawal on senior surface water right holders.
Non-tributary groundwaters, which are outside designated basins, are not
connected to surface water. This water, if withdrawn, will not deplete the flow of a
28
natural stream within 100 years. Prior appropriation doctrine does not apply in this type
of groundwater. This type of water is allocated based upon the ownership of overlying
land. Non-tributary groundwater is regulated by the State Engineer and well drilling can
be done only after obtaining a permit from the State Engineer (13).
Aquifers in the Dawson, Denver, Arapahoe, and Laramie-Fox Hill areas that do
not satisfy the definition of non-tributary groundwater fall under the definition of not
non-tributary groundwater. These waters are under the control of state courts. The permit
for withdrawal is to be followed by augmentation plans specifying procedures for
replacement water if needed to prevent injury to senior water users. The main aim of this
category is to protect the four aquifers underlying the Denver metropolitan area.
Landowners are limited to withdraw amounts of water determined to be underlying the
owned land, and annual withdrawals are limited to one percent of the available water
(13).
Groundwater diversion permits are required depending upon different classes of
wells, i.e., those that are exempt from water rights administration and are not
administered under the priority system, and those that are non-exempt and are governed
by the priority system. In most cases, exempt well permits limit the pumping rate to no
more than 15 gpm (13). Except in limited cases, an exempt well permit will not be issued
where either municipality or water district can provide water to the property. Different
types of exempt wells include household wells, domestic and livestock wells, commercial
exempt wells, unregistered existing wells, monitoring and observation wells, and
replacement wells. Most of these wells must have been created prior to June 1, 1972, in
29
order to be exempt. Non-exempt wells types include other than those described above.
Expiration date of the permit depends upon the statute under which the permit was issued
and on the status of the well.
There have been recent significant legislative changes regarding groundwater
(17). These include the amended rules and regulations governing the diversion and use of
tributary groundwater in the Arkansas River basin, Colorado, after April 1, 1996.
Interbasin transfer is allowed but depends on the type of basin (13). Disputes are handled
by special water courts (99).
3.3.7 Connecticut
Connecticut follows the rule of absolute ownership (25). No preferences for
groundwater allocation exist in this state (100). The water in the State belongs to the
landowner.
The Water Resources Unit permits new diversion of groundwater on a case-bycase basis (55). Diversions existing when the above laws were enacted and those were
registered by July 1, 1983, are exempted (99). Permits are required for groundwater
extraction, except for withdrawals of less than 50,000 gpd, drainage areas less than 100
acres, flows in fire emergency within water supply system distribution mains, and routine
maintenance and emergency repairs. Permits are issued based on water supply needs,
effects on existing and planned uses, and impact to fish, wildlife, and recreation. Permits
are issued for a maximum duration of 25 years (100).
30
There have been no recent significant legislation changes regarding groundwater
allocation since 1983 (100). Interbasin transfer is allowed but requires a permit and a
detailed evaluation of the water needs of the donor basin (55). Disputes can generally be
taken to general state court, but usually disputes are avoided by mitigating problems on a
case-by-case basis by the Department of Environmental Protection before permitting
diversion.
3.3.8 Delaware
The doctrine adopted by Delaware is that of correlative rights, but the use should
be reasonable (100). The groundwater belongs to the landowner. The rights of all
landowners over a common basin, saturated strata, or underground reservoir are coequal
or correlative, and one cannot extract more than his or her share of the water, even for use
on his/her own land, if others’ rights are injured.
Permits are required for beneficial usage of groundwater and are issued by the
Division of Water Resources. Permits are issued with conditions and limitations to
prevent over-drafting of aquifers, adverse migration of contaminants, and adverse impact
on other users. Permits for use have equal priority, except with seniority when the
governor declares an emergency. Upon declaration of an emergency by the governor, the
priority to water use is given to life, health, and wealth in that order. If the water use is no
longer exercised or is no longer beneficial, the water-use permit may be terminated.
Permits are issued for a maximum duration of 30 years (100).
31
Under the regulation adopted in 1986, the Division of Water Resources permits
groundwater uses. Interbasin transfer is allowed and diversions via distribution systems
spread across multiple basin. Disputes are generally taken to general state court and the
Division of Natural Resources and Environmental Control (100).
3.3.9 Florida
The groundwater doctrine in Florida is the reasonable use (25). The landowner
owns the groundwater, but use should be reasonable. The landowner is liable for harm
caused to others by unreasonable use of groundwater. In this rule, a landowner has only a
qualified right, rather than an absolute right, to use groundwater. Groundwater use
preference is given based on nature of water use or the amount of water required (100).
The State Department of Environmental Protection gives priority to certain uses of water
that will result in an improvement of the water resource of the area. Highest preference is
given to domestic use, which is followed by agricultural, industrial, mining, recreational,
and other uses.
Groundwater use permits issued by the State Department of Environmental
Protection are required for withdrawal of water from groundwater basins. There are
exemptions for diversion below certain low flow rate uses, such as domestic wells, and
firefighting. Time limits for permit vary among the five water management districts
ranging from 2 years to 20 years (97). In special cases where local government requires a
longer time to retire bonds for construction of water or wastewater works, districts may
grant permits of up to 50 years (100).
32
This state is divided into five water management districts (WMD): (i) Northwest
Florida WMD, (ii) Suwannee River WMD, (iii) St. Johns River WMD,
(iv) South
Florida WMD, and (v) Southwest Florida WMD. The Department of Environmental
Protection is involved in managing the quality and quantity of water, and implementation
of Florida water policy and the Florida Water Plan through its relationship with these five
WMDs. The WMDs are authorized to administer flood protection programs, perform
technical investigations into water resources, develop water management plans in times
of drought, and manage lands for water management purposes. Regulatory programs
delegated to the WMDs include programs to manage the consumptive use of water,
aquifer recharge, well construction, and surface water management (23).
There has been some recent modification in legislation. The State adopted laws
promoting the use of reclaimed water in 1994. Water conservation and use of reclaimed
water are state objectives to be considered in the public interest. The legislation requires
water management districts to adopt rules to implement this legislation. Interbasin
transfer is allowed. If the transfer of water has no undesirable effects and is in the public
interest, each of the five water management districts are authorized to grant permits to
transfer water within any area of the district provided the local government has not
restricted such transfer. Disputes within the specified areas are settled by the five water
management districts. The State Department of Environmental Protection has a
supervisory role over the district regulation (100).
33
3.3.10 Georgia
In Georgia, two different groundwater rights doctrines are applied. Absolute
ownership is used for percolating water, which is seen as deep, slowly recharged aquifers.
Reasonable use is applied for subterranean streams, which are quickly recharged karst
aquifers (100). Landowners own water is both cases. Preference is based on water use
classification. Domestic use is given highest preference followed by agricultural,
industrial, mining, recreation and other uses.
This state enacted the Groundwater Use Act in 1972 to put water resources to the
most beneficial use. In addition, the State has its own Water Well Standard Act of 1985.
The Environmental Protection Division of the Department of Natural Resource issues a
permanent (maximum of 10 years) or temporary permit. It may modify or revoke any
permit or deny a permit if its use is detrimental to public interest (90). Permits from the
Environmental Protection Division of the Department of Natural Resources are required
if groundwater to be withdrawn exceeds 100,000 gpd (100). The permit considers
withdrawal rate and timing, protection against saltwater encroachment, adverse effect on
others, and well depth and spacing. Permits issued or applied for prior to April 18, 1973,
may continue the same use which existed prior to that date (26). Interbasin transfer is
allowed in this state, but it is not clear whether this refers to surface water or
groundwater. Water use disputes are taken to general state courts (100).
3.3.11 Hawaii
Hawaii’s groundwater doctrine is based on correlative rights (25). The landowner
34
owns the groundwater. Water user permits define the source and reasonable end use and
must be approved by the Commission of Water Resources Management (34).
Groundwater allocation preference exists in this state. Highest preference is given to
domestic water use followed by agricultural, industrial, mining, and recreational uses.
Also, existing uses are implied to have higher preference over other newer uses. Existing
users are defined by those uses at date of designation of water management areas (80).
Groundwater use permits issued by the Commission of Water Resources
Management are required to extract groundwater. No person shall make any withdrawal,
diversion, impoundment, or consumptive use of water in any designated water
management area without first obtaining a permit from the commission. However, no
permit is required for domestic consumption by individual users (34). Only Oahu,
Molokai, and Maui have designated water management areas. The code is not clear about
permit requirements outside the designated water management areas. Time limit of
permit depends upon the situation, but basically they are permanent unless they are not
used for four years, and are always subject to change by the commission.
Most of the changes in the groundwater allocation rules are in cases of permit
requirements (34). The State code allows the commission to approve interbasin transfer
only within water management areas. Outside of management areas, many interbasin
transfers exist but are subject to common law. Disputes regarding groundwater uses are
generally handled by the Commission on Water Resources Management and Supreme
Court.
35
3.3.12 Idaho
In 1951, the Idaho legislature determined that groundwater was subject to prior
appropriation. Groundwater is considered public and the right to use unappropriated
waters can be acquired by an application and permit (13). Domestic use is given
preference over agricultural, manufacturing, mining, recreation and other uses. In some
special areas like mining areas, water is given preference over manufacturing purposes.
A groundwater use permit issued by the Idaho Department of Water Resources is
required for groundwater appropriations. Domestic uses below 13,000 gpd do not require
permits. Transfer of groundwater outside the basin for the purpose of irrigating 5000 or
more acres in excess of 10,000 acre feet per year must obtain approval from the Idaho
legislature (13). The Department of Water Resources designates and manages some
areas, called critical groundwater areas, where permits may be denied because of the lack
of safe supply at the current rate of withdrawal. Outside of critical groundwater
management areas, permits are granted provided the Department of Water Resources
determines the presence of sufficient water. Rights to use water will be lost and forfeited
if the applicant fails to apply it to beneficial use within five years. The water will then
revert to the State and become subject for appropriation (82).
New legislation is related to how surface water and groundwater are administered
relative to distribution (82). Interbasin transfer is allowed but requires approval of the
Department of Natural Resource based on economic and ecological impacts of the
proposed project (25). Disputes regarding groundwater use are generally handled by
general state court (99).
36
3.3.13 Illinois
In the Illinois Water Use Act (1983), the legislature adopted a reasonable use
doctrine thereby abandoning the absolute ownership doctrine (25). The landowner owns
the water. The general intents of this act were (i) to establish a means of reviewing
potential water conflicts before damage to any person is incurred and (ii) to establish a
rule of mitigating water shortage conflicts by authorizing county soil and water
conservation districts to receive notice of incoming water users and to recommend
restrictions on withdrawals of groundwater in emergencies. Domestic uses are given
higher preference over agricultural, industrial, mining, recreational, and other uses (100).
Groundwater use permits issued by the Department of Natural Resources are
required for groundwater withdrawal. Before issuing a permit, impact analysis is done for
new users. Exemptions exist for diversions below 100,000 gpd and for locations outside
certain designated areas. There is no time limit for groundwater permits (46). Interbasin
transfer of groundwater is allowed in this state. Disputes related to water uses are
generally handles by the Department of Natural Resources and general state courts (100).
3.3.14 Indiana
Indiana applies the absolute ownership doctrine and the landowner owns the
groundwater. Higher groundwater use preference is placed on residential domestic use,
followed by agricultural and livestock, industrial, mining, recreational, and then all other
uses (100).
37
Water use permits issued by the Water Rights and Use Section of Department of
Natural Resources are required for groundwater withdrawal if the wells are designated for
public water supply (10). A groundwater right can be held for up to 20 years under
certain conditions. Withdrawals of more than 70 gpm require registration of use (100).
Interbasin transfer of groundwater is not prohibited, except for restriction
regarding the water removal from the Great Lakes Basin (10). Water use disputes are
generally handled by state court (100).
3.3.15 Iowa
Since 1957, groundwater allocation doctrine in Iowa has been correlative rights
(25). The landowner owns the water. Iowa uses an integrated system coordinating
groundwater withdrawal with surface water needs. The groundwater allocation preference
is according to use classification. Domestic water uses are given highest priority over
agricultural, industrial, mining, recreational, and other uses. This structured priority
allocation system will only be implemented during severe droughts or in local areas when
there is groundwater shortage (100).
State law requires two types of permits issued by the Iowa Department of Natural
Resources. First is the permit to construct the water well. The second permit, which is the
water right permit, is required for any uses over 25,000 gpd. A right to use the water can
be acquired for up to 10 years. In some circumstances, it is issued for shorter periods
(71).
38
Iowa enacted the Groundwater Protection Act in 1987 with the goal of preventing
contamination of groundwater from point and non-point sources to the maximum extent
practical. With the passage of the 1987 Iowa Groundwater Protection Act, the State
articulated a comprehensive policy regarding groundwater contamination. This act
established a scheme to raise revenue in three ways: pesticide manufacturing registration
fees, pesticide dealer licensing fees, and fertilizer taxes (53). Interbasin transfer is
allowed, and the statute does not mention anything except that transfers out of state have
lowest priority during water shortages. Water use disputes are generally handled by
general state court (100).
3.3.16 Kansas
At present, the doctrine followed in Kansas is prior appropriation (25). The State
owns the groundwater, and it is protected for the use and benefit of the citizens of this
state. The Kansas Water Appropriation Act protects both the people’s right to use
groundwater and the State’s supply of groundwater. With the permission of Division of
Water Resources, the water right holder can change such things as place of use, type of
water use, or a point of diversion. Some parts of Kansas have no water available for new
permits. In such circumstances, acquisition of an existing water right and obtaining
approval to change one of the features may be the only way to meet a change request.
The groundwater allocation preference is based on the principle of “first in time-first in
right.” That is to say the earliest water right or permit holders have first right to use the
water in case of shortage (74).
39
Extraction of groundwater is considered illegal in Kansas if the users do not have
vested rights or a permit to appropriate water from the Division of Water Resources. The
only exception to this rule is for domestic purposes. Anyone who wishes to use
groundwater for purposes other than domestic use must file a permit application.
Permission to appropriate water is granted based on availability of water in that area and
consideration of interference with other water rights, stream flows, or public interest.
Temporary permits can also be obtained, which allow water use for less than six months
and less than a million gallons of water. This type of permit is mostly granted to oil well
drilling or small construction projects (74). The applicant has a specific time period,
usually 4-5 years, to complete or develop the water right by actually using water as
authorized by the permit (28). Request for a time extension must be submitted in written
form before expiration of the provided period, if more time is needed. In one special case,
the water right is considered abandoned if there are five successive years of non-use due
to sufficient cause like water being unavailable from the source, adequate moisture is
provided by precipitation for production of crops, or temporary pollution of water supply.
Transfer of water between basins for less than 2,000 acre-feet per year and less
than 35 miles from point of diversion, can be considered under regular procedures.
Above those limits, it would have to go through special procedures under Water Transfer
Act 2001 mentioned in K.S.A. 82a-1501 (40). Recent legislation changes allow water
banking and flex accounts for water rights. As mentioned in Kansas Statutes Annotated
K.S.A. 82a-762(l) under Kansas Water Banking Act 2001, water bank leases water from
water rights that have been deposited in the bank, and provides safe deposit accounts.
40
“Bankable water right” means a water right that has been determined pursuant to Kansas
Statutes Annotated 2001, K.S.A. 82a-764 and amendments thereto, to be bankable (40).
Flex accounts offer some flexibility in the annual use of water right in exchange for
conserving water over a five-year period. Multiyear flex accounts are now available for
this purpose, and the deadline to apply for a flex account is October 10 for use in the
following year. Water disputes are handled by the Chief Engineer or general state court
(99).
3.3.17 Kentucky
The groundwater allocation doctrine adopted by Kentucky is reasonable use (25).
Groundwater belongs to the overlying landowner. According to this rule there is no
liability, in the absence of negligence, if the use is legitimate and reasonable. Domestic
use is given first priority in this state followed by agricultural, industrial, mining, and
recreational uses (100).
No one is allowed to withdraw or transfer public water from a stream, lake,
groundwater source, or other body of water unless such person has been granted a permit
by the Natural Resources and Environmental Protection Cabinet for such withdrawal,
diversion, or transfer of water. Water rights based on common law are exempt from
regulation. All withdrawals in excess of 10,000 gpd, type of use other than power
generation, domestic use, and oil and gas production, require a permit that cannot be
transferred. No time limits for the permits exist in this state (100).
41
There have been no significant legislation changes in this state. Interbasin transfer
of water is allowed with the permission of Natural Resources and Environmental
Protection Cabinet, which also deals with water disputes. Water disputes are also handled
by general state court (100).
3.3.18 Louisiana
Louisiana courts adopted the English absolute ownership rule (25). According to
Article 490 of the Louisiana Civil Code, the landowner owns everything lying on, above
or below his property (44). To the contrary, Article 667 the allows landowner to do
whatever he likes in this property without harming his neighbor. This article is more
inclined to reasonable doctrine. The Louisiana Mineral Code treats groundwater as a
mineral and states that a landowner does not actually own the water below his land until
it is pumped to surface (44). The Louisiana Groundwater Code does not mention about
groundwater allocation preference, groundwater permit requirement, and time limit for
the permits. As long as there is no adverse effect, there is no law to prevent inter-basin
transfer in this state. Water disputes are generally handled by general state court (100).
3.3.19 Maine
The groundwater doctrine in Maine is absolute ownership. Reasonable use has
been proposed but not yet enacted (100). The landowner owns the water. In one case,
Maddocks v. Giles (1996), the Maine Supreme Court reiterated their adherence to
absolute dominion rule. In 1996, the legislature in Maine has taken action by creating a
42
groundwater resource management board to do a comprehensive study of water law in
Maine. This board reported to Legislature and suggested that it adopt reasonable use
principles. In should be noted that Maine is the exception in the absolute dominion rule.
The Maine Legislature has created liability when a person withdraws groundwater in
excess of household purposes for a single-family home, and if the withdrawal interferes
with the pre-existing household use of groundwater (25). Maine’s Water Code does not
mention about the permit requirement for groundwater withdrawal. Regarding inter-basin
transfer, there has been no known prohibition nor has there been any known transfer.
Water disputes are generally handled by general state court (100).
3.3.20 Maryland
Maryland applies the preference to American rule of reasonable use (25). The
landowner owns the groundwater. Groundwater use preference in based on use
classification. Municipal water uses are given the highest priority followed by
agricultural and industrial uses (100).
A water use permit from Maryland Department of Environment is required for
groundwater withdrawal. Permits may be conditioned to allow minimum flow, to give
preference according to use classification, or other reasonable causes. Maximum time
limit for the permit is 12 years (100).
Interbasin transfer of groundwater is allowed and regulated by permit. Water
disputes are handled by Maine Department of Conservation and state courts (100).
43
3.3.21 Massachusetts
Massachusetts confirmed its adoption of the law of absolute ownership for
groundwater in 1958 in the Case of Gamer v. Town of Milton. The court stated that the
landowner has absolute ownership of the percolating water beneath his land and may use
the water as he sees fit, even if this use results in a loss of water in the adjoining land
(25). Groundwater allocation preference is given according to the date water is put into
use by the permit holder (100).
Groundwater withdrawal permits are required if withdrawal exceeds 100,000 gpd,
and the maximum time limit for permits is 20 years. Permits are issued by the Watershed
Management branch of the Department of Environmental Protection. Interbasin transfer
is allowed, but full utilization of in-basin sources is a prerequisite. Water disputes are
handled by general state court (100).
3.3.22 Michigan
Michigan has the Restatement (Second) of Torts Rule § 858, also referred to as
the Beneficial Purpose Doctrine (25). Permits, issued by Michigan Department of Natural
Resources, are needed to withdraw the groundwater. There is no time limit for permit.
There is no specific permit requirement for interbasin transfer of groundwater. Disputes
regarding water use are handled by general state court (100).
3.3.23 Minnesota
Minnesota adopted the correlative rights doctrine in 1907 (25). The landowner
44
owns groundwater. By statute, Minnesota created a permit system for large (>1000 gpd)
groundwater withdrawal. Groundwater allocation preference gives highest priority to
domestic use, followed by municipal use, agricultural use, and power production (100).
Water appropriation permits from the Department of Natural Resource are
required for all users withdrawing more than 10,000 gpd (48). Exemptions to this permit
requirement include domestic uses serving less than 25 persons for general residential
purposes, test pumping of a ground water source, and reuse of water already authorized
by a permit (e.g., water purchased from a municipal water system). No time limit for a
permit exists, but there may be special cases where limits are required (100). As long as
permit holders are compliant with permit limitations, and resource problems do not
present themselves, the permit is ongoing. Temporary permits may be issued for
temporary projects because of resource limitations (5).
There have been recent modifications in groundwater legislation (100). Minnesota
statutes were amended in 2003 to increase annual water use fees. Interbasin transfer is
allowed but is subject to permit requirements and evaluation of water availability in the
basin, conservation of water, and alternative sources. Water use disputes are generally
handled by the Minnesota Department of Natural Resources and general state court (100).
3.3.24 Mississippi
On the basis of a decision made on one leading case in 1902, Mississippi has been
categorized as an absolute ownership state (25). In 1988, the legislature enacted the
Water Resource law that encouraged reasonable and beneficial use of all water resources
45
in the State (90). Groundwater in Mississippi belongs to the State. Prioritization of
groundwater allocation is based on beneficial use, which is given in the following order:
public supply, industrial/commercial (including agricultural and commercial livestock
uses), enhancement of wildlife habitat and other recreational uses, irrigation of vegetation
other than commercial crops, and other non-essential uses for leisure activities (49).
Groundwater use requires permits from the Department of Natural Resources,
unless exempted by law (90). Some of the exemptions include domestic use wells having
surface casing diameter of less than 6 inches. Permits are typically issued for a term of 10
years (33). Permit holders may seek reissuance of permits, but the State Permit Board
may modify, terminate, or decline to reissue a permit.
Interbasin transfer of surface water is allowed with the approval of the State
Permit Board (100), but the code does not mention anything about groundwater diversion
(49). Disputes are handled by Office of Land and Water Resource, Environment Quality
Permit Board, and Court (100 and 33).
3.3.25 Missouri
The use of groundwater in Missouri is governed by reasonable use, no matter
whether the groundwater is percolating or an underground stream (25). The landowner
owns the groundwater beneath his property. Reasonable use is determined taking into
consideration all relevant facts and circumstances including the type of water at issue.
Groundwater allocation preference is given as per the water use classification, and
46
domestic water use is given highest priority followed by municipal, agricultural,
industrial, mining, and recreational uses (24).
Groundwater can be used in the area where the well is located, or in areas away
from the well. The use of groundwater away from the well can be stopped if it interferes
with another beneficial user of groundwater. The landowner owns the right to use the
groundwater, but not the groundwater itself (25). A permit, issued by Missouri
Department of Natural Resources, is required to withdraw groundwater. The Missouri
Water Code does not mention the time duration for permits (100). If there is no
interference, groundwater can be diverted and used on land away from the well-head.
Disputes are taken to general state court as other civil cases (100).
3.3.26 Montana
The ground water allocation doctrine adopted by Montana is prior appropriation
rights (25). As Montana’s water belongs to the State, the water right holders do not own
the water itself, but rather the right to use the water within state guidelines. Water users
are limited to the amount of water that they can use beneficially. Water allocation
preference is based on the beneficial use of water, and highest priority is given to
domestic uses, followed by municipal, agricultural, industrial, mining, and other
recreational uses.
Anyone wishing to extract more than 35 gpm or more than 10 acre feet per year
must get a permit from Department of Natural Resources before beginning any
construction work. Sometimes, a permit may be required to drill a well in a designated
area called controlled groundwater area (13). In Montana permits are categorized as
47
temporary permits, which are issued for a limited period of time, and interim permits,
which are temporary permits issued to use groundwater while final approval of
provisional permits are pending (51). Temporary permits have an expiration period based
on the time requested by the applicant.
The State implemented a groundwater plan in 1999. This plan sets forth
recommendations for improving public and private management of the State’s
groundwater with a goal of sustaining current and future uses, but it is not clear whether
these recommendations were really implemented (52). In addition, the State also created
a groundwater characterization program that systematically assesses and documents the
hydrogeology and quality of the State’s groundwater and implements a groundwater
monitoring program to maintain the long-term record of groundwater chemistry and
water level changes (13).
A person may not commence construction of diversions without a permit from the
Department of Natural Resources (13). The department will not approve interbasin
transfer unless the applicant provides clear and convincing evidence that meets state
permit conditions which vary depending on the amount of appropriation. Disputes
regarding water allocation are generally handled by the Water Resources Division of the
Department of Natural Resources and general state courts (99).
3.3.27 Nebraska
Nebraska applies reasonable use, where every landowner is entitled only to a
reasonable and beneficial use of groundwater underlying such person’s land (25). The
48
landowner owns the groundwater. The groundwater right is correlative in time of
shortage.
Generally groundwater use permits are not required for groundwater withdrawal,
but each well, with the exception of domestic wells, must be registered in accordance
with the Groundwater Management Act of 1975 (25). However, permits are required in
control or management areas (90). The application for a permit is denied in the
groundwater management areas only if the well location would conflict with any
regulation adopted by the management areas, and the proposed use would not be a
beneficial use of water for domestic, agricultural, manufacturing, or industrial purposes.
There is no limit on groundwater withdrawal (11).
Interbasin transfer is allowed with permission of the Nebraska Department of
Water Resources. The application for permission should include location of the proposed
well(s), the pipeline(s) or other means of transporting water, project facilities, and
location of use (56). Generally, disputes are handled by Nebraska Department of Water
Resources and general state courts (99).
3.3.28 Nevada
Nevada groundwater allocation statutes are based on prior appropriation (25). The
state owns the groundwater. In 1939, state law changed from absolute ownership to prior
appropriation. Groundwater allocation preference is based on different use categories,
and highest preference is given to domestic uses. It is followed by municipal, industrial,
irrigation, mining, and other recreational uses.
49
Permits to appropriate groundwater must be obtained from the Division of Water
Resources of the Nevada Department of Conservation and Natural Resources before
constructing the well in designated groundwater basins. No permits are needed in nondesignated areas, but permits are needed before any legal diversion can be made from the
well.
Permits are not necessary for domestic wells with flows below 1,800 gpd. Permits
are not necessary for wells existing before July 1, 1983, or wells used solely for domestic
purposes by not more than three single-family dwellings (77). The well driller has to
provide information as required by the State Engineer within 10 days after completion of
the well. Failure to use groundwater rights for five successive years may result in
forfeiture of the rights. The State Engineer may extend the time necessary to work
forfeiture if the request is made before the expiration of the time necessary to work
forfeiture. Time limit can be extended several times, but single extensions should not
exceed one year (77).
Interbasin transfer is allowed in this state. There are over 20 interbasin transfers
occurring in Nevada today. Water transfers in Nevada have contributed to economic
development, growth and prosperity (57). Disputes are generally handed by the Division
of Water Resources of the Nevada Department of Conservation and Natural Resources,
and general state court (99). In any case brought to determine water rights, the court is
required to direct the state engineer to furnish a detailed survey of the groundwater
system. At the court’s discretion, any such cases may be transferred to the state engineer
for determination under the special statutory adjudication procedure, under which the
50
determination of relative rights to use water is commenced by the State Engineer either
on petition of one or more water users or on his own.
3.3.29 New Hampshire
New Hampshire rejected the English rule in 1862. Like other states, this state also
considers groundwater as an integrated resource held in public trust, which means the
state owns the groundwater. Every landowner has a right to use a reasonable amount of
groundwater but no individual owns the groundwater. The dispute of what is reasonable
is decided by court on a case-by-case basis through civil suits brought by one or more
landowners who are injured by a nearby withdrawal (25). State law now requires any
withdrawal greater than 57,600 gpd from a well constructed after July 1998 must have a
permit from the Department of Environmental Services (41).
In 1998, the New Hampshire Groundwater Protection Act and the New
Hampshire Safe Drinking Water Act were amended to identify undesirable impacts to
water resources from new large groundwater withdrawals (41). Interbasin transfer is
allowed with permission from the Water Resources Division of the New Hampshire
Department of Environmental Services. Water use disputes are generally handled by
court (100).
3.3.30 New Jersey
Groundwater rights in New Jersey are controlled by correlative rights doctrine
(25). The State holds the water in trust for its citizens. Diversion privileges are granted by
51
permits if there are no adverse impacts to the resource or other users of that resource (59).
State regulations require that if a lower-quality groundwater is available to non-potable
industrial and irrigation permit applicants, it must be used before relatively higher quality
ground water for potable permit applicants. The lowest quality for intended use
requirement must be met (79).
Water allocation permits, issued from Division of Water Resources of New Jersey
Department of Environmental Protection, are required for withdrawal of groundwater in
excess of 100,000 gpd for a period of more than 30 days (59). Time limits for
groundwater allocation permits vary, but are generally subject to a permit renewal
process after a 10-year term. Permits for non-agricultural use are for up to 10 years, while
agricultural use certifications are limited to 5 years, but can be renewed (79).
The 1981 Water Supply Management Act was amended in 1993, 1997, and
2001 to reduce rates of decline in aquifer levels, promote conservation, serve public
welfare, and lead to more effective use of state water resources. Interbasin transfers of
groundwater have occurred in the past, but have declined as resources become more
limited, and one no longer encouraged. The Bureau of Water Allocation under the
Department of Environmental Protection is the initial point for handling disputes
regarding groundwater use and well-interference issues (79).
3.3.31 New Mexico
Groundwater in New Mexico is the property of the State and allocated for
beneficial use with the prior appropriation doctrine (25). The term “beneficial use” in not
52
defined in the New Mexico Constitution, statutes, or in court decisions. Normally,
beneficial use includes agricultural, municipal, domestic, commercial, and industrial uses.
In administering water uses and rights, the State Engineer in the Division of Water
Resources does not give preference to the type of water use, provided it is beneficial use
without waste (60).
A water use permit from State Engineer’s Office is required to drill a well and to
use the water. The two major exemptions from the permitting process are minimal
domestic uses and wells deeper than 2500 ft (13).
In 1999, the State legislature passed the Ground Water Storage and Recovery Act
to save money through groundwater recharge, storage, and recovery, to reduce the rate of
decline in aquifers, to promote conservation, to serve the public welfare, and to lead to
more effective use of the State’s water resources by setting production limits based on
proportionate reduction, rate of withdrawal, and prevention of well interferences.
Interbasin transfer is allowed but requires a permit. The State Engineer considers
the following factors before granting permission: supply of water available to the State of
New Mexico, water demand in New Mexico, water shortages in the State and water that
could be affected by the application, and supply and sources available to the applicant in
his proposed location (13). Disputes are generally taken care of by the State Engineer’s
Office, and then by timely appeal to state court (99).
3.3.32 New York
New York applies the reasonable use rule and the State owns the water (13). The
State code does not mention about the groundwater allocation preference in this state.
53
Groundwater use permits have been required since 1905 for public water supply
statewide, and since 1935 for all wells in Long Island producing 45 gpm or more. Permits
are issued by the Bureau of Water Permits of the New York Department of
Environmental Conservation based on reasonable use and mitigation of environmental
impacts (100). No specific time limit exists for water use permits.
Interbasin transfers are allowed with exception in the Susquehanna River Basins
and Delaware River Basins. Water use disputes are taken care of by general state court
and the Department of Environmental Conservation (100).
3.3.33 North Carolina
Groundwater rights in North Carolina are controlled by reasonable use doctrine
(25). The State owns the groundwater. Groundwater allocation is done as per the water
use classification. High preference is given to domestic uses followed by municipal,
agricultural, industrial, and other recreational uses. Emergency water use, like fire
fighting, is given the highest priority (63).
Groundwater use permits, issued by the Division of Water Resources of the North
Carolina Department of Natural Resources and Community Development, are required in
certain cases only. Permits are required in capacity use areas where it is necessary for the
Environmental Management Commission to regulate water uses (100). Exemptions to
this permit requirement include water uses within a capacity use area that involves less
than 100,000 gpd, and domestic water uses (63). Permits for water uses within the
54
capacity use area can be issued for no longer than 10 years, or duration of the existence of
a capacity use area (100).
In 1989, the legislature amended House Bill 157, which required all local
government bodies to submit water supply plans that would ensure adequate groundwater
to support present and future demands. Interbasin transfer is allowed, but any person
withdrawing 100,000 gpd or more from groundwater of the State needs to register the
withdrawal with Environmental Management Commission. Water allocation disputes are
handled by general state court (100).
3.3.34 North Dakota
Groundwater rights are managed in North Dakota by prior appropriation (25). All
waters belong to the State and are subject to appropriation for beneficial use. When there
are competing uses of water from the same source, and the source is unable to supply all
the applicants, the State Engineer in the State Water Commission should adhere to the
following priority order: (i) domestic use, (ii) municipal use, (iii) livestock, (iv) irrigation,
(v) industrial, (vi) fish, wildlife, and recreation (65).
A groundwater use permit issued by the State Water Commission is required
before appropriating groundwater of the State. Uses of water for domestic and livestock
purpose are exempt from permit requirements (65). The State may grant temporary or
emergency water use permission, which does not exceed 12 months, provided the State
Engineer finds no detrimental effect on existing water rights. If good cause is shown, the
State Engineer in the State Water Commission may extend the time (65). There have
55
been no recent modifications in the groundwater legislation in this state. Generally,
disputes are handled by the State Engineer and general state court (99).
3.3.35 Ohio
Groundwater allocation doctrine in Ohio is by Restatement (Second) of Torts
§858, also known as the beneficial purpose doctrine (25). In 1984 Supreme Court
decision in Cline v. American Aggregates Corporation, the court adopted the reasonable
use rule for groundwater, as defined by 2nd Restatement of Torts Section § 858. In 1999,
state legislation formally instructed the courts to use Restatement of Torts 858 to
determine reasonability in groundwater use (100). No groundwater use preference can be
found in this state.
Groundwater use permits, issued by the Ohio Department of Natural Resources,
are required to withdraw more than 100,000 gpd (100). However, the code is silent about
the time duration of these permits. There is no recent modification in legislation
regarding groundwater rights in Ohio. Interbasin transfer is allowed with permission from
the Ohio Department of Natural Resources. Water use disputes are handled by the Ohio
Department of Natural Resources and general state court (100).
3.3.36 Oklahoma
In 1949, Oklahoma groundwater law was amended to adopt prior appropriation.
Today, groundwater statutes of Oklahoma incorporate aspects of both reasonable use and
correlative right doctrines (25). The statute directs the Oklahoma Water Resources Board
56
to determine safe yield for groundwater and allocate groundwater to landowners on a per
acre basis. Domestic use is given the highest preference, followed by municipal,
agricultural, industrial, mining, and other recreational uses (18).
Landowners must obtain water use permits from the Oklahoma Water Resources
Board to withdraw groundwater. Permits are granted provided the proposal submitted is
beneficial. Domestic wells are exempted from permit requirements. There are three
different types of permits. A regular permit gives authorization to put groundwater to
beneficial use other than domestic use. A temporary permit is authorized in the same way
as regular permit, but is granted by the board prior to completion of hydrologic survey
and determination of annual yield of the basin or sub-basins. Special permits are those
given by the board in addition to regular and temporary permit. It is granted if the water
put to beneficial use exceeds the amount allocated under regular and temporary permit
(67). Regular permits issued after the determination of maximum annual yield are
permanent. Time durations for temporary permits are specifically established or limited,
but are valid until converted to regular permits. Special permits are granted not to exceed
six months and can be renewed three times upon written request before the expiration
date (18).
In response to the Messer-Bowers decision, the legislature amended title 82,
section 1020.9 and 1020.15 of Oklahoma statutes (68). After this amendment, the
Oklahoma Water Resources Board’s approval is necessary for granting permits to
applicants. This board should determine on the basis of hydrological and other relevant
57
data whether the applicant’s intention to use the water is beneficial or not. If the board
finds no detrimental effect, a permit is granted (18).
Interbasin transfer is not prohibited in Oklahoma. However, in 2003, there was a
protest by landowners in south central Oklahoma against transfer of water to West
Central Oklahoma for municipal use. The Oklahoma legislature enacted a moratorium on
the use of groundwater outside the basin area for municipal use. This legislation has been
challenged in court by those landowners who are willing to sell their groundwater for use
outside the basin area, and this case is still pending (18). Water use disputes are handled
by Oklahoma Water Resources Board and general state court (99).
3.3.37 Oregon
The groundwater doctrine followed by Oregon is prior appropriation doctrine
based on beneficial use. The appropriation doctrine has been the law in Oregon State
since 1909 when the first unified water code introduced state control over the right to use
water (25). The State owns the water. The groundwater use preference is based on
reasonable use of water. However, domestic use is given the highest preference over
other uses like municipal, agricultural, industrial, mining, recreational, and other
beneficial uses. The Oregon Department of Water Resources has the power to classify
water for the highest and best use, and may restrict uses and quantities of use (25).
Rights to appropriated groundwater within the State are granted by the Oregon
Department of Water Resources through a system of registration, permits, and
adjudication (90). Permits are based on beneficial use and may impose conditions to
58
prevent undue interference with existing wells. Certain water uses are exempt from the
permitting process such as livestock, domestic use of less than 15,000 gpd, or industrial
or commercial uses of less than 5,000 gpd. A new user must apply for a groundwater
permit even for normally exempted uses if the area has been declared a groundwater
management area (25). The water right must be used as provided in the permit at least
once every five years, or the right is subject to forfeiture and cancellation (69).
In 1995, the State of Oregon enacted an Aquifer Storage and Recovery Statute
under which only one permit is required to divert, store, and recover water if the water is
put to beneficial use. It is prohibited to appropriate water without the written consent of
the legislature. This written consent may be accompanied by the conditions, exceptions,
reservations, and provisions necessary to ensure protection of the natural resource (13).
Water allocation disputes are taken to the Oregon Department of Water Resources and
general state court (99).
3.3.38 Pennsylvania
The groundwater rights doctrine in Pennsylvania is reasonable use (25). The
landowner owns the groundwater and the use should be reasonable. In 1940, in the case
of Rothrauff v. Sinking Spring Water Co., the Supreme Court rejected the English rule
and adopted reasonable use. No groundwater allocation preferences are stated in
Pennsylvania (100).
Permits issued by the Bureau of Water Resources Management of the
Pennsylvania Department of Environmental Resources are required to withdraw
59
groundwater exceeding 10,000 gpd (1). Time duration for surface water use is 25 years,
but the duration for groundwater permits is not stated (100).
In 1981, growing concerns regarding potential overuse of aquifers in southeastern
Pennsylvania led the Delaware River Basin Commission (DRBC) to designate the
Southeastern Pennsylvania Groundwater Protected Area where DRBC takes specific
steps to protect existing water users whose wells may be affected by newer, deeper, and
powerful neighbors. Interbasin transfer is allowed only if the transfer will not cause
substantial adverse impact on the ability of the exporting basin to meet its own needs.
Water allocation disputes are handled by the Pennsylvania Department of Environmental
Resources and general state court (100).
3.3.39 Rhode Island
Rhode Island still practices the absolute ownership doctrine (100). However,
continuation of this doctrine is doubtful because this doctrine is unable to satisfy interests
of environmentalists, small landowners, municipalities and corporations. Some
commentators have mentioned that Vermont, which initially followed absolute ownership
doctrine, adopted the correlative right rule suggesting the correlative right doctrine to
Rhode Island (25). The landowners own the groundwater in this state. No groundwater
allocation preference exists.
Permits are not required for groundwater withdrawals in this state. Interbasin
transfer is allowed but significant transfers, determined by Rhode Island Water Resource
60
Board, require approval of the board (76). Water allocation disputes are taken to general
state court (100).
3.3.40 South Carolina
South Carolina has adopted the doctrine of reasonable use (25). The landowner
owns the groundwater. Actually, there is no groundwater allocation preference, but the
1985 Drought Response Act allows emergency allocation and gives highest preference to
domestic use, followed by municipal, agricultural, industrial, mining, recreation, and
other beneficial uses (100).
Permits issued by the South Carolina Water Resources Commission are required
for withdrawal of groundwater in excess of 100,000 gpd (83). A time limit for permit
exists in this state but the code does not state the specific duration (100).
Interbasin transfer of the surface water is allowed with permission from South
Carolina Water Resources Commission, but the code does not discuss the interbasin
transfer of groundwater. Water use disputes are generally handled by general state court
(100).
3.3.41 South Dakota
The groundwater rights doctrine in South Dakota is prior appropriation. As
defined in the South Dakota Codified Law, all water within the State is the property of
the people, but the right to use the water must be acquired by appropriation. Domestic use
61
is given the highest priority followed by municipal, agricultural, industrial, mining,
recreational, and other beneficial uses (25).
Domestic groundwater use may not exceed a rate of 25 gpm. If this figure is
exceeded, then the use falls under the appropriation system. Any groundwater use that is
not for domestic purposes or exceeds reasonable domestic use as described earlier
requires obtaining water rights from the Division of Water Rights of the South Dakota
Department of Water and Natural Resources. The groundwater permit remains effective
as long as the water use in not forfeited due to non-use or is abandoned. The exception to
this rule is for permits issued in Madison formation near the Black Hills. Permits for this
formation contain a qualification requiring the permit to be reviewed after 20 years (20).
Groundwater came under the appropriation system in South Dakota in 1955. No
major changes have occurred since then. Interbasin transfers are allowed (20). Disputes
regarding groundwater issues are taken to the Division of Water Rights and general state
courts (99).
3.3.42 Tennessee
The groundwater doctrine adopted by Tennessee is reasonable use rule (25). The
landowner owns the groundwater. In the case of Nashville C. & St. L Ry. v. Rickert, the
court in 1935, ruled that the modern and the better rule was the similar rights of each
landowner, and their rights must be correlative. One must use the groundwater as not to
injure another such that each landowner is restricted to a reasonable use of his own
62
property. Basically, the doctrine adopted by this state is reasonable use doctrine. The
code does not discuss about groundwater allocation preferences.
No permit is required to withdraw water, but under the authority of Water
Resource Information Act of 2000, Tennessee Code Annotated (TCA), Section 69-8-103,
withdrawals of more than 10,000 gpd must be registered. Interbasin transfers are not
allowed in this state. Water use disputes are taken care of by general state court (100).
3.3.43 Texas
In Texas, groundwater is considered to be the property of the owner of surface
estate and treated much like a mineral, oil, or gas. Today, Texas is the only state that still
adheres to the English common law rule in its traditional form outside of groundwater
conservation districts (25). The groundwater in the State belongs to the landowner. There
are certain limitations and exceptions to the general rule.
In many areas, besides
regulation by local underground water conservation districts, two significant limitations
exist for common law on the landowner’s right to capture and use percolating water.
First, pumping cannot be done maliciously with the purpose of injuring a neighbor.
Secondly, pumping cannot be done to wanton and willful waste of resource. The
landowner’s rights with respect to the groundwater flowing in well-defined and known
subterranean stream such as the Edwards aquifers are the same as would apply for a
surface watercourse (16). Domestic and municipal use of water is given the highest
priority followed by agricultural, industrial, mining, hydro-electrical, navigational,
recreational, and other beneficial uses.
63
Groundwater use permits may be required to drill wells in GCDs. However, the
ownership and rights of the landowner are still expressly recognized (54).
Groundwater Conservation Districts in Texas
In Texas, as the pumping from the Ogallala aquifer reached a critical level, the
legislature authorized the creation of underground water conservation districts in Texas
Groundwater District Act of 1949. With the passage of House Bill 2 in 1985, Texas
moved closer to comprehensive local management and regulation of groundwater that
had previously been authorized by the 1949 act. This legislation broadened the Texas
Water Commission’s power to designate critical groundwater areas (54). This designation
was intended to encourage district formation in at-risk areas that had not undertaken
those efforts voluntarily.
Regulation of groundwater by groundwater districts in Texas is given in Chapter
36 of the Texas Water Code (89). In the Water Code § 36.0015, groundwater districts are
the State’s preferred method of groundwater management. In § 36.002, the groundwater
district has authority to regulate the groundwater use despite the ownership rights
possessed by landowners, and a groundwater district can alter or limit the rights
possessed by the landowners. Typical rules include well-spacing limitations, annual
saturated thickness percentage limits, and pumping limits. It should be noted that all these
rules are correlative in nature.
GCDs can be created by four procedures in Texas: action of the legislature,
petition by property owners, initiation by the Texas Commission on Environmental
Quality (TCEQ), and addition of territory to an existing district. Under action of the
64
legislature, new GCDs are created through special legislation, which is usually
introduced by a local senator or representative. The bill usually addresses the manner by
which district will be financed, names of temporary directors, and establishes procedures
for elections. Temporary directors are responsible for holding elections to form the
district and elect the board members.
GCDs may be created by petition to the TCEQ by property owners. This petition
must be signed by a majority of the landowners in a proposed district, or at least 50
signatures if the area has more than 50 landowners, and must name temporary directors
who will be responsible for holding the confirmation election. The TCEQ, after holding
public a meeting within 60 days, must certify the petition within 90 days if the signatures
and petition contents meet statutory requirements. The TCEQ may not certify a petition if
it finds that the proposed GCD cannot be adequately funded and GCD boundaries do not
provide effective management of groundwater resources.
GCDs may be formed by initiation of the TCEQ if the local landowners in a
priority groundwater management area do not take action to create a groundwater
conservation district. Priority groundwater management areas are regions that are
experiencing or are expected to experience within the next 25 years a critical
groundwater problem such as groundwater shortages, land subsidence, and groundwater
contamination.
GCDs can be created by addition of territory to an existing district. A landowner
or a group of landowners may petition an existing GCD’s board of directors to be
65
annexed into the district. The annexation must be approved by the directors, a public
hearing must be held, and the addition must be confirmed by voters (43).
Table 2 shows the names and general information of all GCDs in Texas. Also,
Figure 2 shows the confirmed and pending groundwater conservation districts in the State
of Texas. Also, Groundwater conservation districts, if located in areas of high concern,
can play a vital role in regulating groundwater resources. Modifications in the legislation
dealing with groundwater districts may still be necessary for greater effectiveness (54).
Further considerations need to be given to support creation of more groundwater districts,
to protect landowners from unreasonable use by others’ wells situated on adjacent
properties, and to provide districts with more authority to regulate depletion in lowrecharge areas.
Locally elected boards of directors and the district’s professional staffs manage
the groundwater conservation districts. Before the election, the special law or the TCEQ
will provide for the appointment of five or more temporary directors who will serve until
the initial directors are elected. Under the Texas Water Code, the board must have 4 to 11
directors elected for four year terms. Members of a governing body of another political
sub-division are ineligible to serve. The oldest groundwater conservation districts were
created in areas dominated by agriculture. Usually, the board members are irrigating
producers. GCDs are required to meet the standards set in Chapter 36 of the Texas Water
Code. State agencies that have specific but limited oversight responsibilities are the
TCEQ, the Texas Water Development Board (TWDB), and the State auditor’s office.
66
However, the plans, policies, and administration of each GCD are solely the
responsibility of the GCD’s board of directors (43).
Incomes of the GCDs are primarily from property taxes and well production fees.
Much of the taxes come from residents having no pumps within the districts. A tax-based
GCD may levy property taxes if they are approved by voters for budgeted items. Well
production fees are based on the capacity of the well (43).
Recent legislation changes have continued to weaken the rule of capture through
the concept of critical groundwater areas and increased roles of GCDs. Critical areas are
those identified as having critical effect on aquifer due to over withdrawal of the
groundwater. In 1997, Senate Bill 1 (SB 1) improved the critical areas provisions by
terming these as Priority Groundwater Management Areas (PGMA). This 1997
legislation also related to state creation of groundwater districts within all or part of
priority groundwater management areas. This SB 1 was followed up with Senate Bill 2
(SB 2) in 2001. SB 2 brought changes to chapters 35 and 36 of the Texas Water Code.
The changes are mostly related to strengthening the authority of the GCDs (78). Water
use disputes are handled by general state court (99).
3.3.44 Utah
At the present time, Utah follows the prior appropriation doctrine (25). The State
owns the water, and all waters in this state are considered public property. Historically,
groundwater in Utah was classified into different groups as water flowing in definitive
underground streams, underflow of streams, and percolating waters. Each category has a
75
different groundwater appropriation doctrine. Water from underground streams is open to
appropriation by diversion and beneficial use. Underflow water is considered part of the
associated surface stream. Percolating groundwater is considered to be part of the soil and
is owned by the landowner under correlative rights. The modern trend in Utah is to regard
all waters in the saturation zone as groundwater subject to appropriation after obtaining a
permit from Utah Department of Natural Resources (13). Prior appropriation gives the
better right, and domestic use is given the highest priority over other uses such as
agricultural, industrial, mining, recreational, and other beneficial uses (13).
Permits issued by the Utah Department of Natural Resources are required for all
types of appropriations (13). The State Engineer in the Utah Department of Natural
Resources may issue a permit after reviewing the application, provided the application
meets permit criteria. These criteria include availability of unappropriated water in the
proposed source, no impairment or interference with existing rights, and physical,
economical, financial, and social feasibility. The application is not for the purpose of
speculation or monopoly.
If the State Engineer approves the application and grants the permit, then he will
also decide the time limit in which the proposed construction work must be completed
and the water put to beneficial use. Upon showing of the proper cause of delay, the time
frame can be extended up to 50 years. The time duration can also be extended beyond 50
years by the Utah Department of Natural Resources if the applicant can demonstrate that
the water will be needed to meet reasonable future public demand (13).
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Interbasin transfer is allowed in certain circumstances such as when plenty of
water is available, and the transfer does not have negative impact (13). For the transfer,
the appropriator must follow all the procedures as required in any other water
appropriation process. In addition, the State Engineer should determine that this
appropriation is consistent with Utah’s reasonable water conservation policies and is not
contrary to the public welfare. Disputes regarding water allocation are handled by the
Utah Department of Natural Resources and general state court (99).
3.3.45 Vermont
Currently, Vermont applies the correlative right doctrine (25). The water in the
State belongs to the landowner. The absolute ownership doctrine was prevalent in
Vermont until 1985. Then, Title 10 of Vermont Statutes Annotated, Chapter 48
established the right of a person to sue another for unreasonable damages due to
groundwater withdrawal and diversion (100). The water right code does not state the
groundwater use priority.
A groundwater use permit, issued by the Vermont Department of Environmental
Conservation, is required to withdraw groundwater. Wells deeper than 50 feet and/or
producing more than 25,000 gpd must obtain permits from the Vermont Department of
Environmental Conservation Office. Time duration of the permit varies with different
types of permits. Water use disputes are taken to general state court (100).
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3.3.46 Virginia
Historically, Virginia legislation did not clearly distinguish between the English
Rule and the American Rule. In 1994, according to a decision by the Circuit Court of
New Kent County, Virginia embraced the American Rule (25). The groundwater belongs
to the landowners. The offsite sale of groundwater is considered unlawful if it interferes
with existing groundwater supplies. Use of groundwater in places away from the place of
withdrawal is considered as offsite use. Groundwater allocation preference exists in
Virginia. Domestic use is given the highest priority followed by municipal, agricultural,
industrial, mining, recreational, and other beneficial uses. The preference is both by the
use classification and by the date water is applied to beneficial use (100).
A water use permit from Virginia Department of Environmental Quality is
required to divert more than 300,000 gallons per month. Certain exemptions exist for
construction dewatering, groundwater cleanup, and locations outside of certain
designated areas. Maximum time limit for the permit is 10 years (100).
A change in the permit process was supplemented by 1989 Virginia Water
Protection Permit which is provided in Code of Virginia, Section 62.1-44.15:5 (96). Also,
principal environmental regulatory agencies like the Department of Waste Management,
the Department of Air Pollution Control, and the State Water Control Board merged in
1993 to form the Department of Environmental Quality. Interbasin transfer is allowed in
Virginia through the permit process. This type of transfer is not encouraged but it is
sometimes allowed. More than 20 interbasin transfers exist in Virginia. General state
court handles all the disputes regarding groundwater (100).
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3.3.47 Washington
Groundwater allocation in Washington is currently by the doctrine of prior
appropriation (25). All water in the State belongs to the State and is public property.
Groundwater was allocated by the American Rule before 1945 (13). The English rule was
prevalent in the State till 1935 (25). Currently, water use priority is given as per the date
of filing of the original permit application with the Department of Ecology (13).
A permit from the Department of Ecology is required to withdraw groundwater.
Since 1945, a groundwater permit is required to withdraw more than 5,000 gpd. Domestic
and industrial uses less than 5,000 gpd are exempted from permit requirements. If the
permit holder either abandons or fails to beneficially use the water right to withdraw for
any period of five successive years, the right is relinquished for appropriation (13).
Legislation is being considered to modify or eliminate the forfeiture provision of
the law. It is unclear whether this issue will gain sufficient traction to pass the legislature
(3) Interbasin transfer is allowed provided the diversion follows the law and that the
water is put to beneficial use (13). Water use disputes are handled by the Washington
Department of Ecology and general state court (99).
3.3.48 West Virginia
Groundwater allocation doctrine followed in West Virginia is reasonable use. The
landowner owns the groundwater (25). Groundwater allocation preferences are not
applied in this state, nor are water use permit system. No recent legislation modification
in groundwater use was seen in this state.
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Due to absence of regulation regarding interbasin transfer, it is possible to transfer
the water between basins. The Division of Water Resources makes sure that the water is
put to beneficial use and in case of dispute general state court handles it (100).
3.3.49 Wisconsin
Wisconsin groundwater has been regulated under the Beneficial Purpose Doctrine
(25). Since 1974, only high capacity well owners need to obtain permits from Wisconsin
Department of Natural Resources for withdrawals exceeding 100,000 gpd, but the only
basis for denial is if the well would impact a public water supply. There are some
additional provisions for large withdrawals (>2 MGD) that are connected to the Great
Lakes Charter, but these rarely apply to groundwater withdrawals (9). Variable time
durations are set for permits in this state and the code is not clear about the exact time
durations for the permits (100).
Recent modification in the legislation pertaining to groundwater consists of
introduction in 2003 of Senate Bill 524 by the Committee on Environment and Natural
Resources. This bill includes amendments of the statutes relating to regulation of high
capacity wells, notification of well construction, groundwater quantity management,
granting rule-making authority, and making appropriations (98). As shown in chapter
281.34 and 381.35, Water and Sewage, of Wisconsin Statutes, interbasin transfer exists
but if transfer exceeds 5 MGD, the appropriator must obtain approval from Department
of Natural Resources or Great Lakes Basin entities. Water use disputes are generally
taken to general state court and the Wisconsin Department of Natural Resources (100).
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3.3.50 Wyoming
Before passing of its first groundwater law in 1947 (13), Wyoming gave the
overlying landowner the right to capture and use the groundwater. Passing of the first
groundwater law established the prior appropriation doctrine and permit system (25). The
Wyoming Constitution states that prior appropriations for beneficial uses shall give the
better right (13). Highest preference is given for domestic uses over other uses like
municipal, agricultural, industrial, mining, and other recreational uses.
A groundwater use permit is required from the Wyoming Department of Natural
Resources for groundwater withdrawal, and the procedure to obtain the permit depends
upon location of the well and the declared use. Applications for permits that are not in
control areas are granted if the proposed use is beneficial and the State Engineer finds the
means of diversion and construction are adequate. Control areas are those where anyone
wishing to drill a well must first apply for and receive a permit for beneficial water use.
The application for permit in controlled areas is more complicated. Upon getting a
permit, the applicant has a maximum of 3 years (13) from the date of approval to
complete the construction and use water for beneficial purposes. Within 30 days after
completion, the application should be submitted for adjudication of rights. The
adjudication process finalizes the water rights and fixes the amount of the appropriation
and the point or area of use. Depending upon the interference caused to existing wells,
the State Engineer has authority to order the interfering appropriator to cease or reduce
the withdrawal of groundwater.
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A permit is required to transfer water to other basins or states. No one may
transfer the use of water right to outside the State without prior approval by the
legislature (13). Water use disputes are handled by State Engineer’s Office (99).
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CHAPTER IV
LESSONS AND POSSIBILITIES FOR TEXAS
4.1 Introduction
After reviewing the groundwater management systems in the United States, it was
seen that the tendency has been towards increased control of groundwater allocation.
Initially, efforts to mediate between competing groundwater users gave greater rights to
those who claimed the groundwater first. As the demand for groundwater increased,
many states adopted new approaches in their water allocation systems to coordinate
management of groundwater and surface water. Groundwater laws are evolving in
response to changes in demand, land use, growth, and environmental protection goals.
Some states have enacted comprehensive groundwater statutes, while others have relied
on adaptations and interpretations of long-standing laws.
In this thesis, emphasis is now directed towards the lessons and possibilities for
Texas that could be learned from other states with complex groundwater conditions
specifically California, Colorado, and Kansas. These three are discussed to illustrate the
legal tools Texas may pursue to meet its purposes and priorities. These states were
chosen because they are also larger western states that are heavily dependent on
groundwater for irrigation and municipal uses. Moreover, these states have different
groundwater allocation systems based on complex groundwater classifications. By
reviewing the groundwater allocation systems in these states, it is possible to recommend
alternative approaches for Texas that benefit from both scientific principles and hard-
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earned experience. All background information was previously introduced and cited in
Chapter III.
4.1.1 California
Groundwater in California is classified in three major categories: (i) definite
underground stream; (ii) underflow of surface stream, and (iii) percolating water. In the
present context, groundwater rights in California have been classified in three basic
headings as overlying, appropriative, and prescriptive. Each has a different priority
ranking depending upon the area and type of use.
California, like Texas, has no single agency with authority to regulate
groundwater statewide. In California, rights to pump groundwater are tied to land
ownership. Through time, six methods of groundwater management have evolved: (i)
overlying property right; (ii) local agencies; (iii) adjudicated basins; (iv) special
legislation districts; (v) Assembly Bill 3030, and (vi) city and county ordinances. Most of
the basins contain a number of agencies with different statutory authority, and these
diversities create complex environments requiring continuous coordination between
agencies to design equitable and workable groundwater supply solutions. Many local
water agencies, although similar, have different political, institutional, legal, and
technical limitations that have resulted in dissimilarities in their water management
programs. There seems to be no clear relationship between the groundwater management
plans adopted by water agencies and ordinances adopted by overlying or adjacent cities
or counties.
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State courts have jurisdiction to determine some groundwater rights and to limit
pumping through adjudication, and so far 12 basins have been adjudicated. State courts
have also played a role in resolving discrete conflicts and comprehensive allocation
plans, while many court decisions have established individual interpretations and
policies. In the event of scarcity, courts may limit pumping to safe yield.
4.1.2 Colorado
In Colorado, with passage of the 1965 Groundwater Management Act, the State
adopted a modified prior appropriation system to withdraw different classes of
groundwater. This act covered three types of groundwater based on location and effect on
surface water. An additional type of groundwater was later defined by 1969
Determination and Administration of Water Rights Act. These four types of groundwater
are based on both hydrologic and policy considerations, as follows: (i)designated
groundwater basins: (ii)tributary groundwater: (iii)non-tributary (non-designated, nonDenver basin): and (iv)not-non tributary groundwater (groundwater from Denver Basin
Aquifer). These classifications of groundwater and groundwater basins are somewhat
arbitrary. Moreover, no single rule governs the groundwater in these basins, which makes
the groundwater allocation in Colorado very difficult to understand. Modified prior
appropriation rule was adopted in designated groundwater that protects the rights of
senior water user. In the case of non-tributary groundwater, unlike all other water rights
in Colorado, ownership of groundwater is dependent upon the ownership of the land
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overlying the aquifer. In the case of tributary groundwater, it is administered within the
priority system and is integrated with the administration of surface water.
The State Engineer and Colorado Ground Water Commission, both within the
Division of Water Resources, regulate all water in Colorado. The State Engineer is
responsible for groundwater diversion, well permitting, technical support to the Colorado
Ground Water Commission, and providing assistance for the Board of Examiners of
Water Well Construction and Pump Installation Contractors.
Water related disputes are handled by water courts, comprised of water judges
who are district judges appointed by the Supreme Court. The Water Right Determination
and Administration Act of 1969 created seven water divisions, each staffed with a
division engineer, water judge, and water clerk. Water judges have jurisdiction in the
determination of water rights, use and administration of water, and other water related
matters.
4.1.3 Kansas
Kansas, which follows the prior appropriation system, considers all types of water
to be publicly owned without distinguishing between surface water and groundwater.
Although the State is the lead entity in water rights, groundwater management districts
have been authorized in critical areas to develop regulations for management of local
groundwater. Five groundwater management districts have been formed to date. The
local board within the groundwater management district develops specific regulations on
behalf of the Kansas Division of Water Resources.
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The Division of Water Resources, under the direction of the Chief Engineer,
allocates water in accordance with the prior appropriation doctrine. Groundwater
allocation is based on a relatively simple water balance approach. The water balance is a
method of determining the amount of water in storage in a basin storage area by
accounting for inflow to, outflow from, and changes in storage in that basin storage area
(84). The water balance determines whether more use can be made of the area’s water
resources. Although it is difficult and time-consuming to prepare a detailed and accurate
water budget, enough information exists in Kansas to prepare an approximate annual
water budget for the groundwater. Reporting annual water use is a statutory requirement
of Kansas for all beneficial uses except domestic use.
According to Kansas Administrative Regulation 5-23-4 (39), the proposed
appropriation shall not exceed a calculated rate of depletion of 40 percent in 25 years of
the saturated thickness underlying the area of consideration. The allowable annual
appropriation shall be calculated using the following expression:
Allowable Aquifer Yield
0.40 AMS AR
25
12
(i)
where, Allowable Aquifer Yield = the amount of water that is available annually for
appropriation from a proposed point of diversion (in acre-feet)
A = area of consideration, which is a two-mile radial area with its center being
the proposed well withdrawing water from the high plains aquifer, but limited
to the area within the district’s boundaries (in acres)
M = saturated thickness of the High Plains Aquifer within two-mile radius (in
feet)
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S = storage coefficient or a specific yield of 15 percent
R = average annual recharge and return flow, which shall be a minimum of one
inch per year.
This rule shall not be applied to wells for domestic use, wells authorized by temporary
permits, and wells authorized by term permit of fewer than five years. This simple
approach is very sensitive to the recharge estimate and specific yield value.
4.1.4 Texas by Comparison
Texas also classifies groundwater into two classes: (i) water flowing in a welldefined underground stream, like the Edwards Aquifer, and (ii) percolating groundwater.
State ownership is prevalent in surface water while private ownership applies to
groundwater. Groundwater in well-defined underground streams is regulated as surface
water, subject to appropriation, while percolating groundwater is handled quite
differently as though there were no connection between groundwater and surface water.
The rule of capture in Texas has not been modified significantly by the courts, but
legislation has lead to relatively correlative approaches. After formulation of the first
groundwater conservation districts under the Texas Groundwater District Act of 1949,
significant efforts in groundwater regulation began at the local level. Different regulatory
methods such as correlative rights, reasonable use, prior appropriation, and even rule of
capture exist within the groundwater conservation districts. The different regulatory
methods adopted by the GCDs were shown in Table 2, in section 3.3.43. Within these
districts, groundwater conservation is achieved primarily through well spacing and
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production limits based on acreage, historical use, rate of withdrawal, and well
interference. The concept of historical use has been proposed by some to prevent
production of previously unutilized groundwater. Conjunctive management, which is
practiced only with interconnected surface and groundwater, is recommended and is
viewed as a desirable objective, but is difficult to apply in Texas where surface water is
state-owned and groundwater is not.
It seems better to keep groundwater and technical issues out of general court
where the legal process is costly and time consuming. The State of Texas needs a more
educated decision-making body to control its vast groundwater resources. It seems
necessary for groundwater law to catch up with the science of hydrology as there is a
rapid increase in groundwater use in the United States
The rule of capture has been in existence in Texas for more than 100 years, and
transition from landowners’ possession of groundwater to state ownership would be
onerous. Centralization of groundwater right decisions at the State capital would not
likely be accepted in this large state. The citizens of Texas deserve a groundwater
management structure that properly applies modern scientific and engineering principles.
Appropriate decision-making bodies should be clearly established, rather than leaving
disputes for general state courts. The following section proposes positive steps to update
Texas’ groundwater policies.
4.2 Regulatory Methods within the Groundwater Conservation Districts in Texas
In Texas, areas outside the GCDs still adhere to the rule of capture. Within
groundwater conservation districts, however, this rule has been modified to suit the
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hydrogeologic condition of the aquifer and the needs of the people. In general, the
traditional categories of groundwater doctrines such as (i) rule of capture,
(ii)
correlative rights, (iii) reasonable use, and (iv) prior appropriation doctrine, based on
different permitting, spacing, and production limits, are prevalent within the groundwater
conservation districts.
4.2.1 Rule of Capture
Under the rule of capture, a district does not establish regulations for well spacing
or production thereby relieving the groundwater users from regulatory burdens other than
basic reporting requirements like the quantity pumped and water depths in the well. This
reporting enables districts to begin compiling data on the types and quantity of
groundwater use. Up to this date, 20 out of 84 confirmed GCDs in Texas have rule of
capture as a regulatory method. For details about the GCDs adopting this regulatory
approach, refer to Table 2 in section 3.3.42.
4.2.2 Correlative Rights
Correlative rights are used to establish spacing limits and production limits based
on acreage or tract size. Spacing requirements establish setbacks from other nearby wells,
property lines, and areas of potential contamination. Spacing requirements vary by well
capacity and pump size, i.e., the greater the capacity, the larger the spacing requirement.
Spacing depends on hydrogeology of the aquifer and works well in typical granular
aquifer in rural areas. In karst aquifers and urban areas, specified spacing is generally not
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appropriate. Under production limits based on acreage, districts can establish a certain
quantity of water that can be withdrawn per acre of land owned, leased, or irrigated. This
method can encourage groundwater marketing by creating more certainty regarding how
much water can be withdrawn from beneath each acre of land. This method is commonly
used by the older districts in the Ogallala Aquifer.
4.2.3 Reasonable Use
Reasonable use can be applied to support spacing and production limits based on
proportionate reduction, rate of withdrawal, and preventing well interferences (35).
Spacing requirements establish setbacks from other nearby wells, property lines, and
areas of potential contamination. Spacing requirements vary by well capacity and pump
size. The goal of proportionate reduction is to maintain a certain water level in the aquifer
by reducing groundwater use until total use for the district is approximately equal to
recharge. This concept is difficult to apply in the Texas High Plains, where groundwater
has been mined for decades. Beneficial and reasonable use concepts can be connected to
permit processes that are already adopted by some of the districts. GCDs establish a cap
on withdrawals from an aquifer based on acceptable depletion over time, and permits are
issued based on proven, non-wasteful use until the cap is reached. Once the cap is
reached, each permit is proportionately reduced to make room for new permits or assign a
percent reduction that applies to all, including new permittees, and then periodically
adjusting the percent reduction if the cap is being exceeded.
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Under production limits based on rate of withdrawal, districts establish maximum
rate (gpm or gpd) at which water may be withdrawn. Districts may establish different
withdrawal rates for different aquifers, for different geographical areas, or different
geologic strata within an aquifer.
Reasonable use that limits production based on well interference addresses
drawdown and interference problems on a specific, well-by-well approach, instead of
adopting district-wide production limits applying to all well owners. The district may
require the permit applicant to perform a hydrologic pump test and set the maximum
allowable production minimizing the negative impact on nearby wells, or the district
could establish unique production limits for wells located in a particular geographic areas
experiencing unacceptable drawdown. This approach accomplishes regulation in the most
limited or site-specific manner possible. Right now 40 GCDs have adopted this
regulatory method independently and in combination with other correlative methods.
4.2.4 Prior Appropriation
Prior appropriation rule establishes production limits based on “first in time, first
in right” and on protecting historical use (35). The goal of the production limit based on
“first in time, first in right” can be to maintain a certain water level in the aquifer by not
issuing new permits once the total groundwater withdrawal in a district is approximately
equal to recharge or a accepted value of sustainable yield. Under production limits based
on historical use, the burden of production limit is placed on new users within the district
while protecting the historical users.
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4.2.5 Historical Use Concept
Historical use is defined in a variety of ways, but the basic premise involves
defining a specified class of users as historical users at the time of rule adoption by the
district (35). The amount of groundwater the user can prove that he put to a non-wasteful,
beneficial use during some historical period, is then allocated to him as a historical user.
During scarcity, historical users are allowed to continue pumping their historical use
amounts, while production limits are applied to new users. Scarcity is obvious in case of
surface water, but when it comes to groundwater, scarcity can rarely be defined in exact
terms. Slow recharge, no recharge, drawdown, and more pumping the recharge can all be
used to define scarcity. Historical users need to prove their historical use by providing
evidence such as pumping records (meter logs, electric bills), records of irrigated acreage
(such as aerial photos, crop records, receipts for seeds, fertilizers or other chemicals),
manufacturing or production records for industrial or commercial users, and meter
records from the sale of water.
Historical users are not exempt from district rules forever; it simply means that
the district can restrict new users differently from historical users. If the aquifer cap is
less than the total amount of historical use, then the district may have to limit historical
users as well. Grandfathering is one kind of historical use method in which existing wells
are simply exempted from the district’s regulatory requirements. Currently 17 GCDs
have prior appropriation rule with production limits based on historical use.
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4.2.6 Recent Senate Bills
Senate Bill 1 (SB 1), which was adopted in 1997, included significant
amendments to groundwater district authority (54). SB 1, by creating priority
groundwater management areas, supported the critical areas provisions including a
requirement for groundwater districts to develop management plans. SB 1 amended
Texas Water Code Section 36.0015 by stating GCDs are the State’s preferred method of
groundwater management. SB 1 introduced a new era of regional planning although the
district management plans must be consistent with the regional water plans.
Senate Bill 2 (SB 2), in 2001, again made numerous specific changes throughout
Water Code Chapters 35 and 36, many of which are related to strengthening the districts’
authority. SB 2 gave authority to the district to impose more restrictive permit conditions
on new permit applications (54). It also strengthened a district’s authority to regulate
spacing and production by enumerating several ways to restrict them. It also authorized
districts to impose a reasonable fee on groundwater transported out of the districts.
In 2005, Senate Bill 3 was introduced in Texas by a group of Democrat and
Republican senators (7). This new bill would deal with the development and management
of water resources including the creation and management of additional groundwater
conservation districts. This proposed bill would establish a statewide groundwater
conservation district, made up of the combined territory of all state-owned land not
already within the boundaries of a confirmed groundwater conservation district. TCEQ
and TWDB would be given the administrative responsibility of this statewide district.
Another factor that would make this bill significant is a change in the rule of capture that
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has been in effect for more than 100 years. The proposed change would make the
neighboring high-capacity well users liable for damage caused. This change would
relieve the families and farms outside the groundwater conservation districts from the
fear that their water will be taken away by other high-volume uses.
4.3 Recommendations for Specific Challenges
After discussing the lessons and possibilities in section 4.1 and the issues in
section 4.2, it is possible to recommend some of the appropriate alternatives
methods/approaches to meet the specific challenges faced by Texas. The
recommendations are a combination of existing and new concepts to improve
groundwater management while maintaining local control.
4.3.1 Utilize Existing GCDs
The legislature should set forth the statutory powers and duties of GCDs in detail
to take full advantage of the existing districts. Many advantages exist for small districts
because of ease in accessing monitoring sites and gathering groundwater users’ data. The
only drawback of a small district is the limited funding for scientific studies and legal
challenges. There is no reason to subdivide existing larger districts that have effective
programs in place.
4.3.2 Creation of Additional Districts and Annexation to Existing Districts
The legislature should provide support for the establishment of additional
groundwater districts or annexation of areas adjacent to GCD that use groundwater but
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are not yet included in a GCD. The legislature should provide guidance for consistency
among similarly situated districts, especially those that share the same aquifer.
4.3.3 Proper GCD Funding
Funding for GCDs is done primarily in two ways: (i) property taxes, and (ii) well
production fees. Property taxes are preferred, as this approach provides a stable revenue
stream. Revenue based on production fees attempts to place all burden on the
groundwater producer, but the revenue system is too risky. Both approaches could
struggle if the GCD is too small to encompass enough landowners.
4.3.4 Cooperation Among GCDs Over a Shared Aquifer
In Texas, there are 88 GCDs over nine major aquifers and 20 minor aquifers (54).
Multiple GCDs with different operational philosophies cannot effectively manage the
overlying single aquifer. Therefore, cooperation among these GCDs is crucial for
regional, economic, environmental, and social significance. Sharing of funds helps these
GCDs to carry out larger scientific and legal efforts. It is recognized in some of Texas’
larger aquifer, such as the Ogallala and Carrizo-Wilcox, are extensive enough that some
subdivision may be appropriate. For example, the Ogallala in the Texas High Plains is
normally considered as having distinct southern and northern portions due to differences
in land use, agricultural crops, and saturated thickness.
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4.3.5 Groundwater Court or Hearing Tribunal
The legislature should set up a technically sound approach and hearing body
within TWDB or TCEQ to handling those disputes which cannot be settled at the GCD
level. Surface water rights hearings are currently handled by the TCEQ. A groundwater
court or hearing tribunal could be an efficient and effective mechanism for making
decisions about water conflicts, and thus avoid relying on the courts where the
groundwater principles may be applied inconsistently. Moreover, the legal process in
groundwater court is costly and time consuming.
4.3.6 Roles of TWDB and TCEQ
For the best and efficient management of water, the roles of the TWDB and
TCEQ are prominent. Several different roles and responsibilities are appropriate for the
TWDB and TCEQ in the present context.
The TWDB and TCEQ should support scientific studies of groundwater quantity
and quality issues. The support can be in the form of work by agency staff or grants for
studies led or contracted by the GCDs. The TWDB should continue to gather information
regarding GCD management plans and educational activities to conserve and protect
groundwater resources. It should also support development of young and new GCDs. The
TWDB should encourage linking surface water and groundwater availability models in
areas where there is significant surface and groundwater interaction. The TWDB, TCEQ,
and other agencies responsible for storing water related information in Texas should
enhance the compatibility of technical information by proper communication with one
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another, and should identify opportunities for data integration and data transfer. Finally,
the TWDB should continue to support regional or aquifer-wide approaches to
groundwater management. This effort can be done either through the current regional
planning groups or through cooperation between GCDs.
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CHAPTER V
CONCLUSIONS AND RECOMMENDATIONS
5.1 Conclusions
After a review of groundwater laws in the United States, it became clear that in
the last 200 years American courts and legislatures have applied different methods for
governing groundwater allocations. Table 3 summarizes the distribution of different
approaches across the country. Groundwater laws across the nation have evolved often on
an ad hoc basis, resulting in variances by region, state, and locality. These laws were
complex and often contradictory. Groundwater laws reflect diverse resource management
theories, and this area of law is still evolving as the search for an adequate groundwater
management paradigm continues. However, some states have lagged behind in
responding to changes in groundwater use and have experienced severe depletion. Other
states that responded to the changes in groundwater use by modifying groundwater
management approaches seem to be doing a better job of managing groundwater
resources on a statewide basis.
State courts have gradually replaced the permissive rule of capture and are
replaced it with rulings that impose liability for using more than a fair share of limited
groundwater. However, many states have recognized the need for groundwater
management beyond that provided by court rulings and used legislation to address a
variety of groundwater management programs addressing groundwater quality and
quantity problems either separately or in combination. Also, today legislatures are
playing an important role in creating comprehensive groundwater management programs
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through local GCDs to emphasize conservation and sharing of resources in times and
places of shortage. GCDs and other regulations are intended to prevent serious
groundwater depletion and well-interference conflicts. Nevertheless, complexities in the
aquifer conditions, differences in types of groundwater use, and philosophical variations
in depletion strategies across the nation will make it difficult to come up with a “one size
fits all” approach.
Water management is a complex and difficult process. This complexity and
difficulty are more as demands increase and available resources decrease. Fortunately,
Texas has taken a forward-looking step by creating the GCDs. The TWDB and TCEQ are
responsible for centralized planning and coordination for all water related issues, while
leaving intact the specific responsibilities of existing GCDs. Much of the groundwater in
the State is now regulated by GCDs where different regulatory methods other than rule of
capture exist. So, Texas is not purely a rule of capture state. Rule of capture exists outside
GCDs as well as within some of the GCDs, but correlative rights exists almost
everywhere. Texas is proud of the fact that landowners own the groundwater as oppose to
surface water which is owned by the State.
5.2 Recommendations for Texas
The recommendations for Texas are a combination of existing and new scientific
concepts to improve groundwater management while maintaining responsibilities of the
local GCDs. The State should utilize the existing GCDs by authorizing more statutory
powers and duties in order to take full advantage of the existing districts. Texas should
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support the creation of additional districts or expansion of existing districts by annexing
areas with similar aquifer conditions.
Table 3. Summary of Groundwater Rights and Ownerships in the United States
Groundwater
No. of
Allocation
States
Ownership
State
Landowner
Absolute
Ownership
7
Reasonable
Use
16
Prior
Appropriation
14
Correlative
Rights
Beneficial
Purpose
Doctrine
Reasonable
Use /
Correlative
rights
Absolute
Ownership /
Reasonable
Use
Arizona,
Mississippi, New
York, North
Carolina
Alaska, Colorado,
Idaho, Kansas,
Montana, Nevada,
New Mexico,
North Dakota,
Oregon, Utah,
Washington,
Wyoming
4
New Jersey, South Dakota
Delaware, Hawaii, Iowa, Minnesota,
Vermont
5
3
Connecticut,
Indiana, Louisiana, Maine,
Massachusetts,
Rhode Island, Texas
Alabama, Florida, Illinois, Kentucky,
Maryland, Missouri, Nebraska,
Pennsylvania, South Carolina,
Tennessee, Virginia, West Virginia
Michigan, Ohio,
Wisconsin
New Hampshire,
Oklahoma
California, Arkansas
1
Georgia
Proper GCD fundings should be encouraged through property taxes which
provides stable revenue stream. GCDs overlying shared aquifers should cooperate among
101
themselves by sharing funds and groundwater data that helps these GCDs to carry out
larger scientific and legal efforts. However, if there are major differences in overlying
land use patterns, agricultural crops, and saturated thickness, such as the Ogallala and
Carrizo-Wilcox, some sub-division seems appropriate. Finally, the State should establish
an effective mechanism for making decisions about water conflicts in order to avoid
relying on the courts where the legal process is complex, costly, and time consuming.
102
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http://www.state.vt.us/wtrboard/
West Virginia (visited on September 1, 2004)
http://www.dep.state.wv.us/item.cfm?ssid=11&ss1id=165
Wisconsin (visited on December 10, 2004)
http://www.legis.state.wi.us/2003/data/SB524hst.html
http://www.legis.state.wi.us/statutes/Stat0281.pdf
Wyoming (visited on November 30, 2004)
http://legisweb.state.wy.us/statutes/sub41.htm
115
APPENDIX
Name Lists of Administrating Agencies
Sr. No.
1
State
Alabama
2
Alaska
3
Arizona
4
Arkansas
5
California
6
Colorado
7
Connecticut
Administrating Agency
Alabama Department of Economic and Community
Affairs
Alabama Office of Water Resources
401 Adams Avenue Suite 434
Montgomery, Alabama 36104
P.O. Box 5690
Montgomery,
Alabama 36103-5690
Department of Natural Resource
Division of Land and Water Management
PO Box 107005,
Anchorage,
AK 99510-7005
Arizona Department of Water Resource
15 South 15th Ave
Phoenix, AZ 85007
(602) 255-1554
Arkansas Soil and Water Conservation Commission
101 East Capitol, Suite 350
Little Rock, AR 72201
(501) 682-1611
(501) 682-3991 (Fax)
State Water Resources Control Board
Division of Water Rights
P. O. Box 2000
Sacramento, CA 95810
(916)322-4503
Colorado Division of Water Resources
1313 Sherman St., Room 818
Denver, CO 80203
(303) 866-3581
Department of Environmental Protection
Inland Water Resource Division
79 Elm Street
Hartford, CT 06106-5127
(203) 424-3019
116
Sr. No.
State
8
Delaware
9
Florida
10
Georgia
11
Hawaii
12
Idaho
13
Illinois
14
Indiana
15
Iowa
16
Kansas
Administrating Agency
Department of Natural Resources and Environmental
Control
Division of Water Resources,
Water supply section
89 King’s Highway
P.O. Box 1401
Dover, DE 19903, Phone (302) 763-4793
Florida Department of Environmental Protection
2600 Blair St.
Tallahassee, FL 32399-2400
(904) 488-9730
Georgia Department of Natural Resource
Environmental Protection Division
205 Butler St., SE, Suite 1362
Atlanta, GA 30334
(770) 651-5168
Commission of Water Resource Management
151 Punchbowl St.
Honolulu, HI 96813
Department of Water Resource
1301 North Orchard St.
Boise, ID 83706-2237
208-334-4482
Department of Natural Resources
Office of Water Resource
3215 Executive Park Dr.
Springfield, IL 62794
217-782-4636
Department of Natural Resource
Division of water
Director’s Row
Indianapolis, IN 46241
317-232-4160
Department of Natural Resource
Wallace State Office Building
Des Moines, IA 50319-0034
515-281-5145
State Board of Agriculture
Division of Water Resources
109 SW Ninth St.
Topeka, KS 66612-1283
913-296-3717
117
Sr. No.
State
17
Kentucky
18
Louisiana
19
Maine
20
Maryland
21
Massachusetts
22
Michigan
23
Minnesota
24
Mississippi
Administrating Agency
Natural Resource and Environmental Protection
Division of water
18 Reilly Rd.
Fort Boone Plaza
Frankfort, KY 40601
(502) 564-3410
Department of Transportation and Development
Public Works and Flood Control Directorate
P. O. Box 94245,
Baton Rouge, LA 70804
(504) 379-1434
Maine Department of Conservation
East Side Campus
18 Elkins Lane, Augusta
ME 04333-0022
Phone (207) 287-2211
Fax (207)287-2400
Water Right Division
Maryland Department of the Environment
2500 Broening Highway
Baltimore, MD 21224
(410) 631-3000
Department of Environmental Protection
Office of Watershed Management
One Winter St., 8th Floor
Boston, MA 02108
(617) 565-3420
Michigan Department of Natural Resource
Office of Water Resource
PO Box 30028
East Langsing, MI 48909
(517) 373-0014
Department of Natural Resource
Division of Water, Third Floor
500 Lafayette Road, St. Paul,
MN 55155-4001
(612) 296-0436
Department of Natural Resource Resources
Bureau of land and water resource
P. O. Box 10631
Jackson, MS 39209
(601) 961-5200
118
Sr. No.
State
25
Missouri
26
Montana
27
Nebraska
28
Nevada
29
New
Hampshire
30
New Jersey
31
New Mexico
32
New York
33
North
Carolina
Administrating Agency
Department Of Natural Resource
Division of Geology and Land Survey
P. O. Box 250, Rolla, Missouri 65402-0250
(573) 368-2100
Department of Natural Resource and Conservation
Water Resource Division
1520 East Sixth Avenue
Helena, MT 59620
(406) 444-6601
Department of Water Resource
301 Centennial Mall South
PO Box 94676
Lincoln, NE 68509-4676
(402) 471-2363
Department of Conservation and Natural Resource
Division of Water Resource
201 South Fall St.
Carson City, NV 89710
(702) 885-4380
Department of Environmental Services
Water Resource division
P. O. Box 2008
Concord, NH 03303
(603) 271-3406
Department of Environmental Protection
Bureau of Water Allocation
Division of Water Resource
P. O. Box CN-029, Trenton, NJ 08625
(609) 292-2957
State Engineer Office
Bataan Memorial Building #101
Santa Fe, NM 87503
(505) 827-6175
Department of Environmental Conservation
Bureau of Water Permits
50 Wolf Road
Albany, NY 12233-3505
(518) 457-0656
Department of Natural Resources and Community
Development, Division of Water Resources
PO Box 27687, Raleigh, NC 27611-7687
(919) 733-4064
119
Sr. No.
State
34
North Dakota
35
Ohio
36
Oklahoma
37
Oregon
38
Pennsylvania
39
Rhode Island
40
South
Carolina
41
South Dakota
42
Tennessee
Administrating Agency
State water Commission
900 East Blvd
Bismarck, ND 58505-0817
(701) 224-2750
Ohio Department of Natural Resources
1939 Fountain Square Court, Bldg. E-3
Columbus, OH 43224
(614) 265-6717
Oklahoma Water Resource Board
1000 N. E. 10th St.
P. O. Box 53585
Oklahoma City, OK 73152
(405) 271-2555
Department of Water Resource
3850 Portland Rd., NE
Salem, OR 97310
(503) 378-6002
Department of Environmental Resources
Bureau of Water Resources Management
208 Evangelical Press Building
P. O. Box 1467, Harrisburg, PA 17120
(717)787-6750
Water Resource Board
265 Melrose St.
Providence, RI 02907
(401) 277-2217
Water Resources Commission
P. O. Box 4440
Columbia, SC 29201
(803) 737-0800
Department of Water and Natural Resources
Division of Water Rights
Foss Building
Pierre, SD 57501
(605) 773-3352
Tennessee Department of Health and Environment
Office of Water Management
TERRA Building, Second Floor
4150 Ninth Ave., North Nashville, TN 37219-5404
(615) 741-6623
120
Sr. No.
State
43
Texas
44
Utah
45
Vermont
46
Virginia
47
Washington
48
West Virginia
49
Wisconsin
50
Wyoming
Administrating Agency
Texas Water Development Board
Stephen F. Austin Bldg.
P.O. Box 13231, 1700 N. Congress Avenue
Austin, Texas 78711-3231
Telephone: (512) 463-7847
Fax: (512) 475-2053
Department of Natural Resources
Division of Water Rights
1636 West North Temple # 220
Salt Lake City, UT 84116-3156
(801) 538-7240
Vermont Department of Environmental Conservation
Water Resource Division
103 S. Main St., Old Pantry Building
Waterbury, Vermont 05671-0403
State Water Control Board
P. O. Box 11143, Richmond,
VA 23230-1143
(804) 367-0056
Department of Ecology
Mail Stop PV-11
Olympia, WA 98504-8711
(206) 459-6000
Department of Natural Resource
Division of Water Resource
1201 Greenbrier St.
Charleston, WV 25311
(304) 558-2108
Department of Natural Resources
Bureau of Water Resource Management
PO Box 7921
Madison, WI 53707
(608) 266-9264
Department of Natural Resource
Bureau of Water Resource Management
P. O. Box 7921, Madison,
Madison, WI 53707
(608) 266-9264
121
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