All the Groundwater Law you Always Wanted to Know, But Were Afraid to Ask

Courtesy of a link from Property Prof Blog I was led to this fantastic primer on Groundwater Law from Prof. Joseph Dellapenna at Villanova law.  One of the points he emphasizes, which I strongly agree with, is the idea that the shifting terminology used by courts has resulted in tremendous confusion about the nature of property rights in groundwater in most, if not all, jurisdictions.

When I tried to switch from being a scientist to being a lawyer I struggled mightily with the concept of creating static law by using words - which are highly mutable.  I came from a world where laws were often defined by equations that incorporated numbers and constants - immutable laws - and tried to find my way in a world where laws are subject to near-constant reinterpretation; words don't always mean the same thing to all people.  Crazy stuff, the law.  Hope you enjoy this article as much as I am.

More info on the CAP Pipeline to Green Valley Kerfuffle

As I briefly mentioned in my previous post, the City of Tucson is looking at setting up some policy guidance (pdf) to help them evaluate proposals to hook into a pipeline, jointly owned by the city and the Central Arizona Water Conservation District (the CAP), at the end of the CAP canal/pipeline south of Tucson.  Nothing is set in stone yet - the Mayor and Council instructed staff to make some modifications to the criteria they considered, then bring it back for a vote sometime this summer.  But there has been plenty of grandstanding about what is best for the city, what is best for our shared aquifer, and who is a good steward of our resources.  I jumped into the fray myself last week by submitting a guest opinion that was published in the local paper.

Quality Scholarship on the Issue of Property Rights in Groundwater

This article was posted on the Environmental Law Prof blog recently.  I'll bite on anything that discusses the nature of property rights in groundwater and this article is a very good one.  The author is a former scientist (geologist) turned lawyer (now law professor), so we have something in common.  It's a very thorough discussion of how groundwater rights are treated in the context of takings jurisprudence, using last year's decision (pdf) from the Texas Supreme court in the case of Day v. Edwards Aquifer Authority as the jumping off point. At the time the ruling came down there were many (myself included) who felt it was a blow to prospects for sensible groundwater regulation in Texas.  Finding that landowners have a constitutionally protected right (potential) to groundwater in situ is a strange concept in nearly every state in the U.S. except Texas.  But Prof. Owen believes that this is not a death knell for future regulation of groundwater use.  He believes that property rights in groundwater and sensible regulation of those rights can co-exist.  I hope he is right.

Is ADWR Impotent or Just Arizona Water Law?

From today's AZ Daily Star, a piece by Tony Davis about Arizona Department of Water Resources (ADWR) recent decision to approve the water supply for a very large new development in the Sierra Vista area.  For a little background on water issues in this part of Southeast Arizona check out my previous posts here and here.

Before I take a look at what this decision means I have to point out one erroneous statement from the article.  In the 3rd paragraph where it says "the department's decision gave a clear signal that it doesn't agree with the BLM's position opposing this pumping ..." that is not exactly a correct interpretation of what ADWR was saying (just based on what was reported here because ADWR doesn't have the decision posted to their website as of this afternoon, when I last checked).  As stated under the reasons cited for the ruling, ADWR simply doesn't have the authority to consider the effect of federal reserved rights on an application for a designation of adequate water supply where the application involves pumping groundwater and the federal reserved rights at issue are for surface water.  Arizona law doesn't recognize the connection between surface water and groundwater, except under very narrow circumstances.  And the criteria that ADWR can consider in evaluating the application are pretty clearly spelled out in the administrative code.  I've never noticed anything in there about compliance with federal law as it pertains to federal reserved water rights.

What is Safe Yield and Does it Actually Matter?

Arizona's Groundwater Management Act (GMA), the landmark legislation passed in 1980 intended to finally get groundwater pumping under control in the state, has a mandate that by 2025 groundwater mining (pumping out more that is replaced) should cease in the most populous parts of the state. The law also defined safe yield as the condition where water pumped out of the aquifer is in balance with water entering the aquifer, whether naturally or artificially. The law mentions artificial recharge specifically, reflecting an understanding that natural recharge to many aquifers in the state is very limited and must be augmented by adding water through specially constructed recharge facilities.

Does this mean that water tables in the state would stabilize when safe yield is reached? Not necessarily, because the safe yield concept applies over large areas, only requiring that there be a balance over those large areas – called Active Management Areas (AMA) – which, in reality, could mean that water levels could be continuing to drop precipitously in one part of an AMA but if that pumpage is offset by recharge in another area it's still kosher under the law. That is the precise situation that is currently occurring in the Tucson AMA (TAMA) and is one of the issues to be addressed by a recently created working group, called the Safe Yield Task Force. These specific problems are known as sub-area management issues.

This problem has been significantly exacerbated by the creation of the Central Arizona Groundwater Replenishment District (CAGRD). Many in the water field know of the CAGRD as the legislative acquiescence to the needs of the property development industry in Arizona – the one sector of state commerce not at the table when the GMA was being crafted. The less cynical view is that the CAGRD became necessary for the state to implement the Assured Water Supply rules that were necessary as part of the GMA – rules that required future development to rely on renewable water supplies (essentially Colorado River water via the Central Arizona Project (CAP)).

The CAGRD is an entity that acquires and recharges (replenishes) renewable water to offset the groundwater pumping of cities, towns, and subdivisions that enroll as members in the district. And because the GMA only requires that water use be in balance on an AMA-wide basis, there is no requirement that this pumpage be offset in a way that mitigates water level drawdown caused by that pumpage – i.e. the replenishment can, and often does, occur many miles away and down-gradient from where the groundwater was pumped.

While I would like to think that this Safe Yield Task Force will be able to tackle these sub-area management issues it's an issue that reaches too far into our local economies and involves several key entities who are probably less than enthusiastic about solving these issues (in the most rational and cost-efficient manner). In a nutshell, resolution involves a combination of infrastructure investment (extending renewable water to up-gradient areas for recharge or direct use) and regulatory restrictions on pumping in the most-affected areas (setting pumping limits and restricting new wells in areas where water declines are greatest and the cost of extending renewable water supplies is prohibitive). Property owners in the sub-areas with water supply problems don't want to be excessively restricted in their use of groundwater – they want taxpayers to subsidize the installation of infrastructure to offset their excessive pumping. Taxpayers don't want to subsidize expensive infrastructure to save the bacon of property developers who continue to insist on building in areas with limited water supplies, so they are ok with imposing restrictions on pumping.

As I'm an ongoing participant in the Task Force I will try to post updates on what is occurring there periodically.

Another issue that deserves a post in the next few days is the Draft Phase II Action Plan recently developed by the city and county staff charged with implementing the recommendations of the Phase II City/County Water Study report. There is currently an open comment period on the Action Plan until 10/7. I haven't decided yet if I will submit comments, but will be going over the Action Plan with the Phase II report this weekend to assess whether I should.

Give us more water ... or the aquifer gets it!

This is just priceless.

A farmer from the Central Valley of California makes the argument, in an opinion piece for the Modesto Bee, that if only the Delta restrictions could be dropped, allowing more surface water to be delivered to farms, they could stop overpumping the aquifers - resulting in subsidence, diminished water quality, and wholesale dewatering of their insurance supply.

Come on guys. Are we really supposed to be sympathetic to your plight? OK, you're behaving rationally under the circumstances because the State of California has chosen (start at p. 8) not to govern in the case of groundwater use, but you could still choose to manage the resource more wisely by setting up local governance that actually collects some data on groundwater use, sets some pumping limits, and tries to avoid some of the external costs of over-pumping. But no, this is just another lame opportunity to whine about the Delta smelt and how the little fish is harming farmers.

Time to move on.

Once again, thanks to Aquafornia for bringing this to my attention.

More poorly managed groundwater resources

John Fleck posted this link about a week ago. It's got all the familiar themes for us in the West: drying rivers, dropping water tables, unregulated groundwater pumping, and large irrigated lawns. But it's not in the West, it's in Massachusetts!

Pretty amazing to think of people in Mass., where it rains 48 inches a year, watering their lawns. Do they just really enjoy cutting the grass? The article cites some per capita water use numbers showing that some communities use more water than people do in Tucson - where it rains 12 inches in a good year. The state is stepping in to mandate that average water use for residential customers get down to 65 gallons/capita/day - easily enough water for average indoor needs. Which should deal with the people who don't have the ability to sink a well on their property. But unless they also intend to regulate well drilling on residential lots that might not solve the problem entirely. At the very least they should get people to meter their private wells and pay an extraction fee for pumpage above some limit.

Groundwater Management in California

The NY Times ran an article last week about groundwater use in the Central Valley of California. The article was mentioned on Inkstain, Aquafornia, and On the Public Record, but I just couldn't resist throwing my two cents in as well because this is one of my favorite issues.

California may earn the distinction of having less regulation of groundwater use than even Texas, which still follows the absolute ownership rule - the most permissive legal regime governing groundwater. Texas is at least in the process of developing regional planning documents to guide local agencies that presumably "regulate" access to groundwater in the state (there is plenty of debate about how effective those efforts are or are likely to be). California similarly has only local control of groundwater resources and those efforts range from, basically nothing, to fully adjudicated groundwater basins where rights to groundwater are quantified, prioritized, transferable and for the most part fully-regulated. But the adjudicated basins are primarily in urbanized Southern California. This report from the CA Dept. of Water Resources has a map showing what management regime is in place in different areas of the state (pdf file, about 2.6 mb; it's 10 years old, so not the most current). The areas with little or no management of groundwater are in the main farming areas of the state - the Central Valley, in particular.

The article notes that the state has been making noises recently about actually collecting some data on groundwater use throughout the state - most pumping is not metered in any way and those relying on groundwater consider metering the first step in limiting their "property rights" in groundwater (see my previous post). As the farmer quoted in the NYT story says:

“I don’t want the government to come in and dictate to us, ‘This is all the water you can use on your own land,’ ” said Mr. Watte, 57. “We would resist that to our dying day.”

Strong words there. Of course if they were to run out of groundwater they would surely be clamoring for someone (the government, perhaps?) to come to their rescue by spending tax dollars to bring in a new supply of water. We know what that is like in Arizona, where we were racing to the bottom of our aquifers in the central parts of the state back in the 60s when the feds finally came through with approval of the Central Arizona Project (CAP) to bring Colorado River water in to rescue all the farms and cities from a certain fate. But ... it turned out that the feds were carrying a stick along with the carrot of new water. They insisted that Arizona clean up its act on groundwater regulation by setting some limits on pumping, collecting data on how much pumping was occurring, and creating quantified, transferable rights in groundwater. If we didn't do that, funding for the CAP just might dry up - along with our economy. So the state enacted the Groundwater Management Act of 1980 that imposed fairly stringent regulation of groundwater pumping in the areas where overdraft was most severe.

I'd guess that the most likely reason they have been able to resist more significant regulation of groundwater in California is because they only rely on the stuff when the surface water situation is dire - like it is now. If groundwater is your primary or only source of water (as it was in much of Arizona), the pressure to take action is much stronger. But the California farmers (in the Central Valley at least) have been supplied for the most part with ample surface water from the Central Valley Project, State Water Project, and other large water delivery systems that convey surface water from where it is to where it is needed. When surface water is unavailable or limited, the farmers most affected restart their pumps, and everyone wrings their hands over depletion of groundwater. When surface water supplies return, the pumps turn off and water levels are allowed to recover. This removes the pressure to regulate groundwater use. The difference this time is that the surface water may be gone for good in some instances, so there will be more farmers relying on groundwater more of the time. This may lead to sustained pressure for action. And this being California, you can pretty much bet that action will be state action. The best those farmers can hope for is that they implement some kind of system that gives them something more closely resembling real property rights in groundwater - quantified, transferable, and sustainable. That way they will have both an incentive to manage the use of groundwater and more valuable property rights associated with their farmland, generally.

I'd suggest Mr. Watte start pricing flow meters pretty soon.

Min(e)d the Gaps

There was an interesting post on WaterWired that referenced a recent article in the Santa Fe paper, discussing the issue of ownership of underground pore spaces from which oil and gas had been extracted. Just so you know - I am a big fan of interesting and novel property rights issues and this is a gem.

Some quick background:
All sedimentary deposits are composed of mineral grains of various sizes intermingled with pore spaces that are typically filled with air or water, but sometimes contain recoverable quantities of oil or gas. This is true of unconsolidated deposits (loose sand, gravel, silts and clays) and consolidated materials (i.e. sandstone or shale), however the native porosity of hardened materials is often less than unconsolidated materials because some of the pore space will be filled in by mineralization (with hardrock the dominant porosity is often what is called secondary porosity, resulting from joints and fractures in the rock).

Under the common law of property the person who owns real property (land) owns everything within their property boundaries including the sky above and the earth below. This concept has been modified over time such that landowners cannot prevent airplanes or satellites from passing over their property and the subsurface estate can be split from the surface estate, so that a landowner may own the surface of their property but someone else owns what lies below or at least the right to extract any valuable minerals lurking underground. Much of oil and gas law is based on this split-estate concept.

The issue they are addressing in New Mexico (and also Wyoming, Montana, and perhaps Utah) is who owns the empty pore spaces remaining underground after the minerals have been extracted. This issue is coming to the fore right now because utilities and regulators are looking at old oil and gas reservoirs as possible places to store captured carbon dioxide as part of climate change mitigation measures. I find this interesting because of how it relates to the practice of using depleted aquifers to store water through aquifer storage and recovery (ASR) programs. With ASR there typically is no issue over pore space ownership because (by statute) the entity recharging water into the aquifer owns the water placed there (regardless of pore space ownership), although it usually requires ownership of some overlying surface land in order to put the water in the aquifer. There are probably some state-to-state differences because of differing rules regarding water rights, but I'm not going to get into that here.

With a split estate, the party owning rights to extract oil and gas, would typically only own the hydrocarbons within the pore spaces, not the actual pore spaces. The oil and gas industry is arguing to the contrary but most political support appears to reside with the surface estate owners who believe that once the oil and gas have been removed nothing remains for the extracting party to own. I suspect this is not an issue that has arisen in case law or been addressed by state statute, which is why legislators are addressing it now. But the oil and gas industry must be interpreting some law to make their case and probably have a plausible argument somewhere.

Another issue likely to have a significant role in resolution of pore space ownership questions will be liability for carbon dioxide storage projects. The power industry has been pushing Congress to limit or remove their liability in the event that a storage facility fails to contain the CO2. If a landowner owns the space in which the CO2 is stored they will want similar protection from liability. This would probably be resolved through contracting for use of the space once the ownership is worked out.

Finally, despite what the coal industry has been pushing about the viability of CO2 capture and storage (probably their only hope for survival in a post-carbon society) this is a largely untested technology with a lot of uncertainty associated with it. For more on that issue, check out this recent article in The Economist.