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.

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.

Here It Is!

If you remember waaaay back in April, I posted about a new law that had just been passed by the Arizona legislature that would make it very difficult to establish in-stream flow rights in Arizona.  At that point the bill was on its way to the governor's desk, where it would shortly be signed into law.

Well on Aug. 3 that new law went into effect and pretty soon Arizona Dept. of Water Resources had posted their guidance on implementing the law and a link to download the new in-stream flow application form.  They can be found here.

Now you might think this would be pretty much a tempest in a teapot, after all the opportunities to appropriate surface water in Arizona are effectively pretty limited at present.  And experience has shown that the most effective means of protecting in-stream flows around here are by having the most senior rights on the downstream end of the river system (see SRP).

But what this means is that our state government does not believe in the value of maintaining environmental flows in rivers (case in point) and wishes to protect existing "uses" of water from the threat of "non-users" or should I say "non-economic-benefit-providing users".  And by economic benefit I of course mean the kind of economic benefits that flow to highly favored entities among our state legislature.

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.

Colorado Considers Adopting Public Trust Doctrine?

I came across this link courtesy of Aquadoc's Weekly Round-up of water news.  Seems a few people in Colorado are dissatisfied with their current system of reasonably secure property rights in the use of the state's water.  They are placing initiatives on the ballot later this year that would formally adopt a strong public trust doctrine.  The texts of the proposed initiatives can be found here and here.  Essentially what this would do is still allow you to have your water rights - whether derived from prior appropriation or whatever.  But those rights would always be subject to rights of the state to protect the water on behalf of the people.  So if someone decides that a world-class trout fishery is more important to the state than a valley full of farmers, the state could step in (theoretically) and tell the farmers to stop diverting water for irrigation so that the trout stream can thrive.  This is a concept that exists in many places but only rarely has it been found to trump existing property rights.  In this case, the wording of the initiative states pretty clearly that the public trust is superior to private property rights.  I don't see this going very far.

Some worthwhile things to read

I'm way overdue on one of these and only a little bit on the other.

I have often wondered if the concept of unitization (a governance regime for oil/gas reservoirs that imposes reservoir-wide management by combining the interests of multiple producers under a single management entity) could be applied to aquifer management.  In my opinion there are certain aspects of existing forms of aquifer management that incorporate elements of unitization - adjudicated groundwater basins probably come closest, but none are truly unitization as practiced in the oil fields.  Todd Jarvis, who is on the faculty of Oregon State University, as part of their Institute for Water and Watersheds, recently authored a paper (links to the abstract, I think you have to pay for the full paper) that looks at this idea from a theoretical perspective.  Todd points out in an email that this approach might be useful in places, such as California, that have very little existing management of groundwater resources but considerable experience with unitization in oil fields.  It's an interesting idea that I think merits further study.

The other document that is of great interest to me is the final Cornerstones Report on Market-Based Responses to Arizona's Water Sustainability Challenges prepared by the talented folks at Ecosystem Economics and the National Fish and Wildlife Foundation under a grant from the Walton Family Foundation (who have been funding a number of initiatives related to preservation of riparian ecosystems in Arizona).  I haven't had a chance to do much more than glance through the report, but I did have a chance to review a draft copy last winter and participated in one of the workshops that helped brainstorm ideas to inform this report.  It's a very honest and thorough assessment of the realities and challenges associated with using market-based approaches to securing water for environmental needs in Arizona and I highly recommend taking a look if this interests you.

Assorted Property Rights for Sale

For some reason I was searching through a list of books on water marketing on Amazon the other day and an advertisement on the bottom of the page caught my eye.  It offered a forum for buying and selling water rights and listed a website: http://georights.com/.

So I clicked through to take a look.  Seems they offer just about every sort of interest in land there could be: easements, mineral rights, hunting/fishing rights, etc.  It must be fairly new because they are offering free sign-ups to list and bid on properties in order to build their traffic.

So I checked out their listing of water rights for sale.  Not real extensive at this point, but pretty good geographic diversity for what is there.

I'm kind of curious if anyone out there has any experience with this outfit or knows of the people behind it.  Anyone .... Bueller?  Chris Corbin?