Groundwater is a critical natural resource, but the law has always struggled with it. During the 19th and early 20th centuries, the common law developed several doctrines to allocate groundwater among competing users. The groundwater revolution of the mid-20th century produced an explosive growth in pumping worldwide—and quickly exposed the flaws of these doctrines. Legal rules predicated on land and on surface waters could not meet the challenges posed by the common-pool groundwater resource: those of understanding groundwater dynamics, quantifying the impacts of pumping on other water rights, and devising satisfactory remedies. Unfettered by received property restraints, pumping on an industrial, aquifer-wide scale depleted and contaminated aquifers, regardless of doctrine.
The groundwater revolution motivated significant legal developments. Starting in the 1970s, the Supreme Court of the United States adapted its methods for resolving interstate water disputes to include the effects of groundwater pumping. This jurisprudence has fundamentally influenced international groundwater law, including the negotiation of trans-boundary aquifer agreements. Advances in hydrogeology and computer groundwater modeling have enabled states and parties to evaluate the effects of basin-wide pumping. Nonetheless, difficult legal and governance problems remain. Which level of government—local, state, or national—should exercise jurisdiction over groundwater? What level of pumping qualifies as “safe yield,” especially when the aquifer is overdrawn? How do the demands of modern environmental law and the public trust doctrine affect groundwater rights? How can governments satisfy long-neglected claims to water justice made by Indigenous and minority communities? Innovations in groundwater management provide promising answers. The conjunctive management of surface and groundwater can stabilize water supplies, improve water quality, and protect ecosystems. Integrated water resources management seeks to holistically manage groundwater to achieve social and economic equity. Water markets can reward water conservation, attract new market participants, and encourage the migration of groundwater allocations to more valuable uses, including environmental uses.
The modern law of groundwater allocation combines older property doctrines with 21st-century regulatory ideals, but the mixture can be unstable. In nations with long-established water codes such as the United States, common-law Anglophone nations, and various European nations, groundwater law has evolved, if haltingly, to incorporate permitting systems, environmental regulation, and water markets. Elsewhere, the challenges are extreme. Long-standing calls for groundwater reform in India remain unheeded as tens of millions of unregulated tube wells pump away. In China, chronic groundwater mismanagement and aquifer contamination belie the roseate claims of national water law. Sub-Saharan nations have enacted progressive groundwater laws, but poverty, racism, and corruption have maintained grim groundwater realities. Across the field, experts have long identified the central problems and reached a rough consensus about the most effective solutions; there is also a common commitment to secure environmental justice and protect groundwater-dependent ecosystems. The most pressing legal work thus requires building practical pathways to reach these solutions and, most importantly, to connect the public with the groundwater on which it increasingly depends.
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Article
The Allocation of Groundwater: From Superstition to Science
Burke W. Griggs
Article
Groundwater Development Paths in the U.S. High Plains
Renata Rimšaitė and Nicholas Brozović
The High Plains Aquifer is the largest aquifer in the United States and the major source of groundwater withdrawals in the region. Although regionally abundant, groundwater availability for agriculture and other uses is not uniform across the area. Three separate states comprising the most significant portion of the aquifer have distinct climate and hydrologic characteristics, water law systems, and institutional groundwater governance leading to different concerns about water policy issues across the area.
The northern, largest, and most saturated part of the High Plains Aquifer is located under Nebraska. The state has the largest irrigated area in the United States, most of which is groundwater irrigated. Nebraska is the home of the largest companies in the center pivot irrigation industry. Center pivot technology has had a fundamental role in expanding groundwater-fed irrigation. Nebraska is not free from groundwater depletion issues, but these issues are more important in central and south-central parts of the aquifer underlying large, primarily agricultural, lands of Kansas and Texas. The natural aquifer recharge is much lower in the south-central parts of the region, which has caused large groundwater extractions to have more significant water declines than in Nebraska.
In the United States, the greatest portion of water quantity management regulatory oversight is left to individual states and local government agencies. Each of the three states has a unique legal system, which highly influences the framework of groundwater management locally. In Nebraska, groundwater is governed following two doctrines: correlative and reasonable use, which, in times of water shortage, lead to a proportional reduction of everyone’s allocation. Kansas uses the prior appropriation doctrine to manage groundwater, which applies the seniority principle when there is scarcity in water availability, making junior water rights holders bear the greatest risk. The absolute ownership doctrine is used to govern groundwater in Texas, which allows landowners to drill wells on their property and extract as much water as needed.
Institutional groundwater governance in Nebraska is performed by the system of 23 locally elected Natural Resources Districts having full regulatory power to manage the state’s groundwater. The local governments use a variety of regulatory and incentive-based groundwater management tools to achieve local groundwater management goals. In Kansas, the Chief Engineer in the Kansas Department of Agriculture is in charge of water administration for the state. The Kansas legislature established five Groundwater Management Districts to address groundwater depletion issues, which can make policy recommendations but do not have the power to regulate. Groundwater Conservation Districts were created in Texas to provide protection from uncontrolled water mining in the state. The districts gained more power to regulate and enforce rules over time; however, significant groundwater depletion issues remain.
Multiple lessons have been learned across the region since the beginning of groundwater development. Some of these could be applied in other areas seeking to address negative consequences of groundwater use. Forward-looking perspectives about groundwater management in the region vary from strong government-led solutions in Nebraska to various producer-initiated innovative approaches in Kansas and Texas.
Article
Environmental and Cultural Flows in Aotearoa and Australia
Erin O'Donnell and Elizabeth Macpherson
In settler colonial states like Australia and Aotearoa New Zealand, water for the environment and the water rights of Indigenous Peoples often share the common experience of being too little and too late. Water pathways have been constrained and defined by settler colonialism, and as a result, settler state water law has both a legitimacy problem, in failing to acknowledge or implement the rights of Indigenous Peoples, and a sustainability problem, as the health of water systems continues to decline. In both Australia and Aotearoa New Zealand, the focus of water law has historically been to facilitate use of the water resource to support economic development, excluding the rights of Indigenous Peoples and poorly protecting water ecosystems. However, in the early 21st century, both countries made significant advances in recognizing the needs of the environment and the rights of Indigenous Peoples. In Aotearoa New Zealand, Te Tiriti o Waitangi (the Treaty of Waitangi) provides an important bicultural and bijural framework that is beginning to influence water management. In 2017, as part of a Treaty dispute settlement, Aotearoa New Zealand passed legislation to recognize Te Awa Tupua (the Whanganui River) as a legal person and created a new collaborative governance regime for the river, embedding the interests and values of Māori at the heart of river management. In Australia, water recovery processes to increase environmental flows have been under way since the 1990s, using a combination of water buybacks and water savings through increased efficiency. There has been growing awareness of Indigenous water rights in Australia, although progress to formally return water rights to Indigenous Peoples remains glacially slow. Like Aotearoa New Zealand, in 2017, Australia also passed its first legislation that recognized a river (the Birrarung/Yarra River) as a living entity and, in doing so, formally recognized the responsibilities of the Wurundjeri Woi Wurrung people as Traditional Owners of the river. This trend toward more holistic river management under a relational paradigm, in which the relationships between peoples and places are centered and celebrated, creates a genuine opportunity for water governance in settler states that begins to address both the legitimacy and sustainability flaws in settler state water law. However, these symbolic shifts must be underpinned by relationships of genuine trust between Indigenous Peoples and the state, and they require significant investment from the state in their implementation.
Article
Water User Associations and Collective Action in Irrigation and Drainage
Bryan Bruns
If there is too little or too much water, farmers may be able to work together to control water and grow more food. Even before the rise of cities and states, people living in ancient settlements cooperated to create better growing conditions for useful plants and animals by diverting, retaining, or draining water. Local collective action by farmers continued to play a major role in managing water for agriculture, including in later times and places when rulers sometimes also organized construction of dams, dikes, and canals.
Comparative research on long-lasting irrigation communities and local governance of natural resources has found immense diversity in management rules tailored to the variety of local conditions. Within this diversity, Elinor Ostrom identified shared principles of institutional design: clear social and physical boundaries; fit between rules and local conditions, including proportionality in sharing costs and benefits; user participation in modifying rules; monitoring by users or those accountable to them; graduated sanctions to enforce rules; low-cost conflict resolution; government tolerance or support for self-governance; and nested organizations.
During the 19th and 20th centuries, centralized bureaucracies constructed many large irrigation schemes. Farmers were typically expected to handle local operation and maintenance and comply with centralized management. Postcolonial international development finance for irrigation and drainage systems usually flowed through national bureaucracies, strengthening top-down control of infrastructure and water management.
Pilot projects in the 1970s in the Philippines and Sri Lanka inspired internationally funded efforts to promote participatory irrigation management in many countries. More ambitious reforms for transfer of irrigation management to water user associations (WUAs) drew on examples in Colombia, Mexico, Turkey, and elsewhere. These reforms have shown the feasibility in some cases of changing policies and practices to involve irrigators more closely in decisions about design, construction, and some aspects of operation and maintenance, including cooperation in scheme-level co-management. However, WUAs and associated institutional reforms are clearly not panaceas and have diverse results depending on context and on contingencies of implementation. Areas of mixed or limited impact and for potential improvement include performance in delivering water; maintaining infrastructure; mobilizing local resources; sustaining organizations after project interventions; and enhancing social inclusion and equity in terms of multiple uses of water, gender, age, ethnicity, poverty, land tenure, and other social differences.
Cooperation in managing water for agriculture can contribute to coping with present and future challenges, including growing more food to meet rising demand; competition for water between agriculture, industry, cities, and the environment; increasing drought, flood, and temperatures due to climate change; social and economic shifts in rural areas, including outmigration and diversification of livelihoods; and the pursuit of environmental sustainability.
Article
Use of Experimental Economics in Policy Design and Evaluation: An Application to Water Resources and Other Environmental Domains
Simanti Banerjee
Economics conceptualizes harmful effects to the environment as negative externalities that can be internalized through implementation of policies involving regulatory and market-based mechanisms, and behavioral economic interventions. However, effective policy will require knowledge and understanding of intended and unintended stakeholder behaviors and consequences and the context in which the policy will be implemented. This mandate is nontrivial since policies once implemented can be hard to reverse and often have irreversible consequences in the short and/or long run, leading to high social costs. Experimental economics (often in combination with other empirical evaluation methods) can help by testing policies and their impacts prior to modification of current policies, and design and implementation of new ones. Such experimental evaluation can include lab and field experiments, and choice experiments. Additionally, experimental policy evaluation should pay attention to scaling up problems and the ethical ramifications of the treatment. This would ensure that the experimental findings will remain relevant when rolled out to bigger populations (hence retaining policy makers’ interest in the method and evidence generated by it), and the treatment to internalize the externality will not create or exacerbate societal disparities and ethical challenges.
Article
Rethinking Water Markets
Rupert Quentin Grafton, James Horne, and Sarah A. Wheeler
Global water extractions from streams, rivers, lakes, and aquifers are continuously increasing, yet some four billion people already face severe water scarcity for at least one month per year. Deteriorating water security will, in the absence in how water is governed, get worse with climate change, as modeling projections indicate that much of the world’s arid and semiarid locations will receive less rainfall into the future. Concomitant with climate change is a growing world population, expected to be about 10 billion by 2050, that will greatly increase the global food demand, but this demand cannot be met without increased food production that depends on an adequate supply of water for agriculture. This poses a global challenge: How to ensure immediate and priority needs (such as safe drinking water) are satisfied without compromising future water security and the long-term sustainability of freshwater ecosystems? An effective and sustainable response must resolve the “who gets what water and when” water allocation problem and promote water justice. Many decision makers, however, act as if gross inequities in water access can be managed by “business as usual” and upgrades in water infrastructure alone. But much more is needed if the world is to achieve its Sustainable Development Goal of “water and sanitation for all” by 2030. Transformational change is required such that the price paid for water by users includes the economic costs of supply and use and the multiple values of water. Water markets in relation to physical volumes of water offer one approach, among others, that can potentially deliver transformational change by: (a) providing economic incentives to promote water conservation and (b) allowing water to be voluntarily transferred among competing users and uses (including non-uses for the environment and uses that support cultural values) to increase the total economic value from water. Realizing the full potential of water markets, however, is a challenge, and formal water markets require adequate regulatory oversight. Such oversight, at a minimum, must ensure: (a) the metering, monitoring, and compliance of water users and catchment-scale water auditing; (b) active compliance to protect both buyers and sellers from market manipulations; and (c) a judiciary system that supports the regulatory rules and punishes noncompliance. In many countries, the institutional and water governance framework is not yet sufficiently developed for water markets. In some countries, such as Australia, China, Spain, and the United States, the conditions do exist for successful water markets, but ongoing improvements are still needed as circumstances change in relation to water users and uses, institutions, and the environment. Importantly, into the future, water markets must be designed and redesigned to promote both water security and water justice. Without a paradigm shift in how water is governed, and that includes rethinking water markets to support efficiency and equitable access, billions of people will face increasing risks to their livelihoods and lives and many fresh-water environments will face the risk of catastrophic decline.
Article
Water and Development: A Gender Perspective
Yoshika S. Crider and Isha Ray
The large and multidisciplinary literature on water for domestic use and gender has two primary foci: (1) the negative health and well-being impacts of inadequate access to safe water, and (2) the effects of women’s participation in water allocation and management decisions. These foci are reflected in both the research and policy literatures. Smaller bodies of work exist on water and social power, and on nonmaterial values and meanings of water. The term “gender” refers to the socially constructed roles and identities of girls, women, boys, men, and nonbinary people, but the literature on water and gender to date is mainly concerned with women and girls, on whom inadequate water access places a disproportionate burden.
The water and health literature during the Millennium Development Goals era focused overwhelmingly on the consequences of unsafe drinking water for child health, while paying less attention to the health of the water carriers and managers. Studies on women’s participation in water-related decisions in the household or community were (and to some extent remain) mixed with respect to their effects on equity, access, and empowerment. Both the health and participation strands often assumed, implicitly or explicitly, that water work was women’s work. Yet data on access was mainly collected and presented by household or community, with little effort to disaggregate access and use by gender.
In keeping with the spirit of the Sustainable Development Goals, the post-2015 literature has gone beyond a focus on infectious diseases to include the psychosocial stresses of coping with unreliable or inadequate water supplies. These stresses are acknowledged to fall disproportionately on women. A relatively small literature exists on the health impacts of carrying heavy loads of water and on the hard choices to be made when safe water is scarce. The negative impacts of inadequate domestic water access on girls’ education opportunities, on the safety of those who walk long distances to collect water, and on family conflicts have also been studied. Access is being defined beyond the household to prioritize safe water availability in schools and in healthcare facilities, both of which serve vulnerable populations. Both are institutional settings with a majority-female workforce. The definition of domestic water post-2015 has also broadened beyond drinking water to include water for cooking, sanitation, and basic hygiene, all of which particularly concern women’s well-being.
Intersectionality with respect to gender, class, ability, and ethnicity has started to inform research, in particular research influenced by feminist political ecology and/or indigenous values of water. Political ecology has drawn attention to structural inequalities and their consequences for water access, a perspective that is upstream of public health’s concerns with health impacts. Research on participation is being augmented with studies of leadership and decision-making, both within communities as well as within the water sector. Critical studies of gender, water, and participation have argued that development agencies can limit modes of participation to those that “fit” their larger goals, e.g., efficiency and cost-recovery in drinking water systems. Studies have also analyzed the gendered burden of paying for safe water, especially as the pressure for cost recovery has grown within urban water policy.
These are significant and growing new directions that acknowledge the breadth and complexities of the gender and water world; they do not simply call for gender-disaggregated data but attempt, albeit imperfectly, to take water research towards the recognition of gender justice as a foundation for water justice for all.
Article
Economic Instruments to Control Greenhouse Gas Emissions: REDD+
Rawshan Ara Begum
Deforestation causes up to 10% of global anthropogenic carbon emissions. Reducing emissions from deforestation and degradation and enhancing forest carbon stocks can contribute to controlling greenhouse gas (GHG) emissions and limit global warming and climate change. However, global warming cannot be limited without decreasing the use of fossil fuel or emission-intensive energy sources. The forestry sector could contribute 7%–25% of global emissions reduction by 2020. Apart from emissions reduction and sink (mitigation), forests also provide cobenefits such as ecosystem services (providing food, timber, and medicinal herbs); biodiversity conservation; poverty reduction; and water quality, soil protection, and climate regulation. In 2005, the UNFCCC introduced a cost-effective mitigation strategy to reduce emissions from deforestation (RED) in developing countries.
The UN’s initiative to reduce emissions from deforestation and forest degradation (REDD+) aims to transform forest management in developing countries, where the majority of tropical forests are located, using finances from developed countries. REDD+ seeks to reward actors for maintaining or restoring forests, acting as an economic instrument by putting a monetary value on every tonne of CO2 that is prevented from entering the atmosphere. Implementation of REDD+ requires economic and policy instruments that can help to control GHG emissions by enhancing carbon sinks, reducing deforestation and forest degradation, and managing sustainable forests.
Payment for environmental services offers opportunities for either cofinancing or economic valuation in regard to REDD+ implementation. The challenge is to identify the most appropriate and cost-effective instrument.
REDD+ fulfills the current needs for economic instruments and incentives that can be implemented with existing land use and forestry policies to control global GHG emissions. However, REDD+ requires forest governance, law enforcement, clarification of land and resource rights, and forest monitoring to work in the long term. REDD+ payments can be made for results-based actions, and the UNFCCC has identified potential ways to pay for them, but challenges remain, such as clarifying financing or funding sources, distribution of funding and sharing of benefits or incentives, carbon rights, and so on. Different aspects pf the implementation, effectiveness, and scale of REDD+ and their interactions with economic, social, and environmental benefits are important for successful REDD+ implementation.
Article
Politics of Water Flows: Water Supply, Sanitation, and Drainage
Tatiana Acevedo Guerrero
Since the late 20th century, water and sanitation management has been deeply influenced by ideas from economics, specifically by the doctrine of neoliberalism. The resulting set of policy trends are usually referred to as market environmentalism, which in broad terms encourages specific types of water reforms aiming to employ markets as allocation mechanisms, establish private-property rights and full-cost pricing, reduce (or remove) subsidies, and promote private sector management to reduce government interference and avoid the politicization of water and sanitation management. Market environmentalism sees water as a resource that should be efficiently managed through economic reforms.
Instead of seeing water as an external resource to be managed, alternative approaches like political ecology see water as a socio-nature. This means that water is studied as a historical-geographical process in which society and nature are inseparable, mutually produced, and transformable. Political ecological analyses understand processes of environmental change as deeply interrelated to socioeconomic dynamics. They also emphasize the impact of environmental dynamics on social relations and take seriously the question of how the physical properties of water may be sources of unpredictability, unruliness, and resistance from human intentions. As an alternative to the hydrologic cycle, political ecology proposes the concept of hydrosocial cycle, which emphasizes that water is deeply political and social. An analysis of the politics of water flows, drawing from political ecology explores the different relationships and histories reflected in access to (and exclusion from) water supply, sanitation, and drainage. It portrays how power inequalities are at the heart of differentiated levels of access to infrastructure.
Article
Agricultural Subsidies and the Environment
Heather Williams
Worldwide, governments subsidize agriculture at the rate of approximately 1 billion dollars per day. This figure rises to about twice that when export and biofuels production subsidies and state financing for dams and river basin engineering are included. These policies guide land use in numerous ways, including growers’ choices of crop and buyers’ demand for commodities. The three types of state subsidies that shape land use and the environment are land settlement programs, price and income supports, and energy and emissions initiatives. Together these subsidies have created perennial surpluses in global stores of cereal grains, cotton, and dairy, with production increases outstripping population growth. Subsidies to land settlement, to crop prices, and to processing and refining of cereals and fiber, therefore, can be shown to have independent and largely deleterious effect on soil fertility, fresh water supplies, biodiversity, and atmospheric carbon.
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