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The Allocation of Groundwater: From Superstition to Science  

Burke W. Griggs

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.