Groundwater Flashcards
Absolute Ownership Doctrine
If you can get it, you’ve got it
Rule of capture; think Pierson v. Post—it’s the capturing it that matters
How to secure right: drill well and start using
On tract and off tract
It’s not priority; senior/junior doesn’t matter
How does state handle competing interests?
- Courts don’t do anything—courts won’t provide remedy, have to go to legislature (why we see carve outs in Texas)
American Reasonable Use Doctrine
Use on overlying tract is per se reasonable in conflict with non-overlying user
Enjoin exporter from pumping
Way it plays out is function of where burden is (burden shifting)—existing user has burden of showing harm
- Problem with groundwater—how do you show harm?
Compare to correlative rights—exporter has to prove a surplus in correlative jdx
Distinction of who has burden has major consequences (E.g., If you’re a water bottling company, first jdx you want to be in is rule of capture; second is reasonable use because burden is on other user; in correlative, would have to prove surplus)
With conflicts between 2 overlying owners, will potentially look for injury, but capture is the operative doctrine
2 overlying users are per se reasonable, exporter is not
Think O has advantage, but then look at burden—harm has to be shown by O (advantage starts to go away)
Correlative Rights Doctrine
Establish right—clear standard of subordination
Conflicts between O and E—off tract user has burden of showing surplus (Distinction between correlative rights and American Reasonable Use)
Relationship between land you own and groundwater you use? Proportional; everyone will share, but proportion of amount you share dependent on proportion of land you own
Percentage of land you own determines (correlates) percentage of water you get
Off tract use subordinate to on tract users
With burden of proof on E, if need hydrological study, which is expensive, E has to pay for it
Priority matters if O and only for E if other Es
O v. E – burden of surplus
E v. E – Priority
Mining—doctrine doesn’t deal with it very well (Why we have subsidence)
Restatement (Second) of Torts
a. Started as liability rule but used as allocation doctrine
b. Makes groundwater extractor liable for:
i. unreasonable harm to others
ii. that occurs by lowering the water table
iii. or withdrawing water in excess of a reasonable share of the annual supply or total share of groundwater
c. Identifies factors (same ones that apply to reasonable use riparianism in surface water) to be considered to evaluate reasonableness of competing uses
d. But does not draw strong distinction between use of groundwater on and off tract where groundwater is extracted
Prior Appropriation
a. Put groundwater to beneficial use
i. Need permit? In West, permit-exempt wells (e.g., Bend built on exempt wells)
ii. Exempt well provisions articulated in legislation
b. Impact of what is a well field over an aquifer has led to massive problems
i. Real estate developers would drill a bunch of individual wells just under legal threshold so land use permit could be approved
- Land use system separate from water use system
c. One of huge conflicts in West—junior potentially exempt groundwater users who are possibly having impact on senior surface water users
d. Role of land ownership
i. Need land to dig well, but don’t need it to be overlying
e. O v. O conflicts
i. O/E distinctions don’t matter
f. Parameters in PA system (measure and limit) is beneficial use
g. Mining—any water not put to beneficial use is wasted
i. PA on its own would pump aquifer dry
Cones of Depression
When groundwater withdrawn through well, water level in well declines and water begins to move from surrounding aquifer into well.
Movement of water from aquifer into well results in cone of depression.
As pumping continues from particular well, cone of depression expands and can capture groundwater that would ordinarily be available for neighboring wells—results in “well interference”
Shallow Senior Problem
Junior user able to pump water deeper than senior can, creating a cone of depression and depriving senior of water
States have different approaches
In PA surface water, we’d just tell junior to stop using water once senior runs out, but don’t do this for groundwater—if we enforce seniority, we lock up the aquifer (i.e., can only pump from as far down as senior can go, even if junior would be able to go lower)
Make exception to enforcing groundwater seniority in west because would not be able to put groundwater to use (e.g., senior with shallow well versus junior with deep well)
In Oregon, make junior user pay for senior to dig deeper well or give them some of their water
