GROUNDWATER
 
Definition of GW: percolating water vs. underground streams and reservoirs.


Many states distinguish gw on basis of hydrologic connection to a stream (tributary gw) or based on other definitions. CA only requires permits for underground streams.

Absolute ownership doctrine - also known as English rule, it was established in 1843, "heaven and hell" case. (CT, GA, IL, IN, MD, MA, MS, OH, RI, TX, VT, DC) Law so absolute that very few court cases ensued. No liability However most states temper law with regulatory legislation, particularly with regard to reasonable use, correlative rights. (Except TX, Rule of Capture)

Prior Appropriation (junior liable) - usually modified through a statutory permit system, but most realize prior appropriation not in keeping with the nature of the resource i.e. not renewable on a reasonable time frame. Usually applied strictly where waters hydrologically connected, generally only unreasonable harm is actionable, this law is also often applied in cases between exporters of water

Reasonable use - ("American Rule") established Forbell vs City of NY 1900, water can be withdrawn for reasonable use on overlying land without liability, very close to riparian rights. Modified in later case so that water can be transported from overlying lands (Bristor vs Cheatham 1953)

Public Resource: usually managed through permits

Correlative Rights - recognizes finite water availability and seeks to allow equal use (Similar to riparian doctrine for reductions during droughts), landowners allowed a share based on acreage (Olson vs City of Wahoo Neb 1933, modified in Prather vs Eisemnann, Neb, 1978, to allow preferences

Mutual prescription - CA in a unique case (Pasadena vs Allhambra 1949) recognized that where mining was occurring that all users had used water adversely to one another and that the rights had developed into prescriptive rights Caused chaos with everyone pumping as much as possible. Modified in Los Angeles vs San Fernando(1975) which exempted municipalities from prescription and said that owners should be put on notice of adversity when the overdraft commenced.

Liability
Junior appropriator to supply water to senior or stop pumping after water level in well fell by 6.7 m (Pima Farms vs Proctor 1926)
Artesian heads protected because of earlier priority (Current Creek vs. Andrews, UT, 1959); not protected (Wayman vs Murray City Corp, Utah, 1969)
Economic reach - applies economics to harm rule.

Water quality can be considered as an impairment as well as supply.

Subsidence caused by groundwater pumping

Groundwater Protection
Critical areas, sole source aquifer
Local groundwater management districts can be formed.
Arizona GW Management Act 1980.
Other states have described the amount or percentage of mining which can occur

Some questions that can be raised with regard to aquifer protection and over-development:
The yield may be better from a given part of an aquifer. How can this be regulated? What is a reasonable pump lift?
Safe yield can be defined scientifically, economically, or socially
What is going to happen to groundwater users when 25 or 40 years is up?

Conjunctive Use

Does water feed stream? on what time frame?

"presumption of tributariness" that the burden of proof is on those asserting the water is not-tributary. This shifts the burden of proof to junior groundwater users and favors stream appropriators.

The idea of tributary water supplies also applies to priority time.

Groundwater Storage
Becoming a heavily used technique particularly in arid areas.
Three types of storage rights: the right of a public agency to import and store water without obligation to overlying land owners, the right to protect stored water against use by others, and the right to recapture stored water.

Bypass pumping has also been used, in which a proportion of pumped water is transferred directly to stream.

Reserved Rights
As with surface water, groundwater can be used for reserved rights. Few cases, however, in Cappaert vs US (1976), Supreme Court upheld injunction to cease pumping that was lowering water level in spring in nearby National Monument which was endangering Desert Pupfish.

Texas Groundwater Law
The rule of capture is in force. Absolute ownership
Water cannot be used maliciously with intent to harm
May be subject to further rules if in an underground water district
Two types of groundwater – percolating and underground streams. All water presumed to be percolating unless proven otherwise

http://www.cgiar.org/iwmi/pubs/WWVisn/vision.htm
Read the publication of global groundwater problems, especially the sections Groundwater Challenge, and Opportunity.
http://capp.water.usgs.gov/gwa/ch_e/index.html
The Ground Water Atlas of the US, read about the High Plains aquifer in the OK, TX section

Basic principles
Recharge rates/discharge
Rates of movement
Cone of depression

What are the adavantages of groundwater use?

Global Problems

China
West and South Asia
Mexico
Middle East

Impacts of Groundwater Overdraft
Groundwater overdraft occurs when water removal exceeds water recharge. The slow natural recharge rate of most aquifers and high rate of pumping has led to groundwater overdrafts in most irrigated areas of the U.S. over the past century. Impacts associated with groundwater overdraft are the results of falling water levels as the water stored in an aquifer is depleted.
Higher Pumping Costs
Land Subsidence
Depletion of Surface Water
Degraded Aquifer Water Quality

Case Studies:

Los Angeles versus California, pt 2
"Giving Back the Owens." http://www.owensriver.org/

Ogallala Aquifer
http://capp.water.usgs.gov/gwa/ch_e/index.html

http://www-ne.cr.usgs.gov/highplains/hp_99_web_report/FS-029-01.pdf