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Law, Land Use, and Groundwater Recharge

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Law, Land Use, and Groundwater Recharge Stanford Law Review Volume 73 May 2021 ARTICLE Law, Land Use, and Groundwater Recharge Dave Owen* Abstract. Groundwater is one of the world’s most important natural resources, and its importance will increase as climate change continues and the human population grows. But groundwater management has traditionally been governed by lax and uneven legal regimes. To the extent those regimes exist, they tend to focus on the extraction of groundwater rather than the processes—referred to as groundwater recharge—through which water enters the subsurface. Yet groundwater recharge is crucially important to the maintenance of groundwater supplies, and it is also highly susceptible to human influences, particularly through our pervasive manipulation of land uses. This Article discusses the underdeveloped law of groundwater recharge. It explains why groundwater-recharge law, or the lack thereof, is important; it discusses existing legal doctrines that affect groundwater recharge, occasionally by design but usually inadvertently; and it explains how more intentional and effective systems of groundwater-recharge law can be constructed. It also sets forth criteria for judging when regulation of groundwater recharge will make sense, and it argues that a communitarian ethic, rather than the currently prevalent laissez-faire approaches, should underpin those regulatory approaches. Finally, it suggests using regulatory fees as a key (but not exclusive) instrument of groundwater-recharge regulation. * Harry D. Sunderland Professor of Law, University of California, Hastings College of the Law. I thank Lauren Marshall, Schuyler Schwartz, and Michael Kelley for research assistance and Michael Kiparsky, Nell Green Nylen, Jim Salzman, and participants at the University of Arizona environmental law works-in-progress conference and the Rocky Mountain Mineral Law Foundation water law works-in-progress conference for helpful suggestions at early stages and comments on drafts, and the editors of the Stanford Law Review for excellent editorial assistance. 1163 Law, Land Use, and Groundwater Recharge 73 STAN. L. REV. 1163 (2021) Table of Contents Introduction ......................................................................................................................................................... 1165 I. Groundwater Recharge and the Water Cycle ........................................................................ 1171 A. Natural Water Cycles ................................................................................................................. 1172 B. Human Influences ......................................................................................................................... 1174 C. Regulatory Challenges ............................................................................................................... 1179 II. The Past and Present Law of Groundwater Recharge ....................................................... 1181 A. Developing Land ........................................................................................................................... 1183 1. The common enemy ......................................................................................................... 1183 2. Urbanization ......................................................................................................................... 1184 3. Stream and wetland fills ................................................................................................. 1188 B. Managing Floods ........................................................................................................................... 1191 C. Forests and Fields .......................................................................................................................... 1194 1. Water and the woods ....................................................................................................... 1195 2. Agriculture, irrigated and otherwise ....................................................................... 1200 D. Managed Aquifer Recharge ..................................................................................................... 1203 III. The Future of Groundwater-Recharge Law ............................................................................ 1206 A. The Circumstances for Groundwater-Recharge Law ............................................. 1206 B. A Groundwater-Recharge Ethic .......................................................................................... 1211 C. The Instruments of Groundwater-Recharge Law ..................................................... 1215 Conclusion ............................................................................................................................................................. 1219 1164 Law, Land Use, and Groundwater Recharge 73 STAN. L. REV. 1163 (2021) Introduction Every day, around the world, billions of people rely on water pumped from wells.1 They do so because groundwater is an extraordinarily useful resource. It is available over broad areas; even in landscapes where surface- water streams are few and far between, many people can access groundwater simply by drilling a well.2 Because some contaminants filter out as water moves through the subsurface, groundwater is often cleaner than surface water.3 And because groundwater usually flows slowly and evaporates only minimally,4 groundwater storage can often last much longer than surface- water storage; groundwater therefore can remain available even during extended droughts. These benefits extend to ecological systems as well as human extractive users.5 Because groundwater tends to be cleaner, cooler, and more steadily available than surface runoff, it plays a crucial role in sustaining many rivers, streams, wetlands, and lakes.6 1. For statistics, see Facts About Global Groundwater Usage, NAT’L GROUND WATER ASS’N, https://perma.cc/PAH9-EWWZ (archived Mar. 8, 2021). In 2015, the U.S. Geological Survey estimated that 115 million people in the United States alone rely on groundwater for drinking water. The Quality of the Nation’s Groundwater, U.S. GEOLOGICAL SURV. (Jan. 21, 2015), https://perma.cc/9HHD-8AGP; see also Mark Giordano, Global Groundwater? Issues and Solutions, 34 ANN. REV. ENV’T & RES. 153, 154 (2009). Giordano explains: There is no question that the use of groundwater has brought astounding benefits to literally billions of people. Probably the majority of the world’s cities rely to some degree on groundwater for urban water supply, and it could be argued that groundwater in part enabled the global urbanization phenomena we are now witnessing. No less spectacularly, large-scale agricultural groundwater use has brought massive benefits to legions of small, poor (or previously poor) farmers, particularly in Asia. Id. 2. See Giordano, supra note 1, at 155. 3. Id. 4. See id; Peter Dillon & Muhammad Arshad, Managed Aquifer Recharge in Integrated Water Resource Management, in INTEGRATED GROUNDWATER MANAGEMENT: CONCEPTS, APPROACHES AND CHALLENGES 435, 445 (Anthony J. Jakeman et al. eds., 2016) (describing losses as high as 35% to 45% of stored surface water due to evaporation). But see E. Balugani et al., Groundwater and Unsaturated Zone Evaporation and Transpiration in a Semi-arid Open Woodland, 547 J. HYDROLOGY 54, 54-55 (2017) (noting that the low- evaporation assumption, though common, is probably incorrect and can lead to overestimation of recharge). 5. See Derek Eamus et al., Groundwater Dependent Ecosystems: Classification, Identification Techniques and Threats, in INTEGRATED GROUNDWATER MANAGEMENT, supra note 4, at 313, 317-18 (describing types of groundwater-dependent ecosystems). 6. See generally Masaki Hayashi & Donald O. Rosenberry, Effects of Groundwater Exchange on the Hydrology and Ecology of Surface Waters, 43 J. GROUNDWATER HYDROLOGY 327, 330-31 (2001) (describing flow patterns and temperature effects); S.D. Keesstra et al., Soil as a Filter for Groundwater Quality, 4 CURRENT OP. ENV’T SUSTAINABILITY 507 (2012) (describing the filtration function of soils and variables affecting pollutant filtering). 1165 Law, Land Use, and Groundwater Recharge 73 STAN. L. REV. 1163 (2021) Despite its value, groundwater is often ignored, misunderstood, or taken for granted, and inattention often goes hand in hand with unsustainable exploitation.7 Consequently, groundwater supplies in the United States and around the world are being depleted, in some places with alarming speed.8 That depletion is already leading to shortages, which are likely to spread and intensify as a growing global population uses more water and as climate change accelerates water stress.9 The human costs of these crises can be immense.10 So, too, are the environmental consequences; many surface waterways would not flow, and some have already ceased flowing, without inflows from groundwater.11 Yet even as groundwater resources come under growing strain, many people are eyeing groundwater as an increasingly important source of future supply.12 Their reasons are straightforward: We must get water from somewhere, and in a warming world, with more droughts and less water precipitating as snow, less surface water will be available in many places, particularly during warmer and dryer seasons.13 Water managers might compensate for increasingly erratic flows by building more dams and surface reservoirs, but in many areas, few good dam sites remain.14 Dam construction and operation are also expensive and environmentally
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