Groundwater Flashcards
What are the five groundwater doctrines?
1) Capture
2) Correlative Rights
3) American Reasonable Use
4) R.2d Test
5) Prior Appropriation
What is the rule of capture?
Absent malice or willful waste or land subsidence, landowners can take all the GW they can capture even if they deprive their neighbors of water.
What is the correlative rights rule?
1) Reasonable use limits the right of others to take such an amount of GW as may be necessary for some useful purpose in connection with the land from which it is taken.
2) Overlying landowner has priority over appropriator using water on distant land, but only to extent of quantity necessary for use on his land. Appropriator can take surplus.
3) If landowner has not used water, right limited to quantity necessary for use at best.
4) Between overlying owners, each gets fair and just proportion.
What is the american reasonable use rule?
Overlying owner has proprietary interest to use GW under land freely and without liability, but only if use is for reasonable purpose incident to beneficial enjoyment of the land.
Use or sale of GW off overlying land is unreasonable if it impairs supply of an adjoining owner to her detriment.
Waste unreasonable.
Can transfer right, but can’t sever it.
What is the R.2d Reasonable use test?
Overlying owner/grantee who withdraws GW for a beneficial purpose not subject to liability to another unless:
1) Withdrawal unreasonably harms neighbor through lowering water tale or reducing pressure;
2) Withdrawal exceeds proprietor’s reasonable share of annual supply/total store of GW;
3) Withdrawal of GW has direct and substantial effect upon a water course and unreasonably causes harm to person entitled to use the water.
How is PA applied generally to GW?
1) Usually allows some interference from juniors.
2) Requires strong showing of harm.
What is the junior pay rule?
A junior GW user’s injury to a senior can be enjoined unless the junior pays for lost water.
What is GW mining and is it legal?
Pumping GW at a rate that exceeds its recharge.
Prohibited in some states; others see GW rights as being subject to time limit equal to depletion of resource.
Where prohibited, state may consider economics of GW users in regulating.
How does CO classify GW?
Waters of the state = SW and “tributary” GW.
Tributary GW = GW flow reaches stream in 40 years (100 too much). Key is when streamflow affected by pumping.
Non-tributary GW = Not subject to PA.
What is the templeton doctrine?
A senior appropriator not getting their full right may drill a supplemental well that maintains seniority if it is connected to baseflow of the watercourse where they hold their right. Must be near-ish to POD.
Does surface water pumped into an aquifer for storage become subject to capture?
No. Storing is not applying to use.
How does conjunctive administration work in disjointed systems?
Different approaches include:
R.2d Reasonable GW test to SW injury.
Distinction between “subterranean streams” and percolating GW.
Water that was GW but then pops up through a stream becomes subject to PA.
How does conjunctive management work in PA systems?
ID—no material injury to senior SW or GW rights; mitigation plans to allow out-of-priority uses.
CO—Conjunctive management not always limited to priority of rights; state can consider environmental + economic concerns (force SW users to improve efficiency). GW can pump out-of-priority from SW seniors with an aug plan.
OR—State can only regulate wells greater than 1 mile from surface water through a critical groundwater area determination.
NM—State may condition new GW appropriations to prevent injury to existing senior SW users.
What is a “renewable” GW source?
Rate of recharge is within a human timescale?
What is the common law approach to conjunctive management?
“Underground streams” subject to SW law; percolating GW subject to GW law.
