sign in sign up
<<
Home , Overdrafting

13-Smith.qxd 02-10-2002 19:59 Pagina 257

CHAPTER 13 collective management systems: the United States experience

Z.A. Smith Northern Arizona University, Flagstaff, Arizona, USA [email protected]

ABSTRACT: Groundwater management in the USA is diverse and decentralized making generaliza- tions sometimes difficult. In many areas groundwater is managed under permit systems that pre- vent wasteful overuse and allow planned development. In other areas individuals are free to pump with few restrictions and sometimes with wasteful consequences. This chapter provides an overview of collective groundwater management systems used in the USA by summarizing the types of systems in place and the advantages and disadvantages of each system. It concludes with an exam- ination of what can be learned from the groundwater management experience in the USA and sug- gestions for the development of future groundwater management systems.

1 INTRODUCTION others very little groundwater is used (Table 1 gives a state-by-state breakdown of groundwater The rules governing groundwater use in much of use). the USA and the world bring to mind the state- ment in Plato’s Republic “I declare justice is 1.2 Role of the national government nothing but the advantage of the stronger”. Is this how things should be? In much of the USA To examine in a comprehensive manner the and the rest of the world this is how it is. In this experience of managing groundwater in the chapter we will examine the experience of the USA is a daunting task. The first thing that one USA in the collective cooperation and manage- must understand is that there is no national ment of groundwater . groundwater policy nor, for that matter, is there any coherent national system of groundwater management. The system of groundwater man- 1.1 Groundwater use agement in the USA is highly diversified and The USA is heavily dependent on groundwater, decentralized, consisting of fifty state systems although this dependence (like almost every- and sometimes many more (as within some thing about groundwater management in the states management systems have developed that USA) varies significantly from region to region. make it difficult to generalize about how Nationally, according to the U.S. Geological groundwater is managed even in a particular Survey (USGS) groundwater provides an esti- state). mated 22% of all freshwater withdrawals, 37% To complicate matters even further, the dif- of agricultural use (mostly ), 37% of ferent systems of groundwater management used public withdrawals, 51% of all in the USA are determined by political bound- for the entire , and aries and almost never recognize geophysical 99% of the drinking water for the rural popula- boundaries. Consequently, an that strad- tion. These figures are somewhat misleading dles a political boundary may have one system however. In many states more than half of the of groundwater management governing the water used comes from the ground and in many aquifer on one side of the boundary, and an

257 13-Smith.qxd 02-10-2002 19:59 Pagina 258

Z.A. Smith

Table 1. Surface and groundwater use in the USA (adapt- entirely different system of management gov- ed from: USGS 2000b). erning the aquifer on the other side of the State Population Groundwater boundary. For example, in New Mexico ground- (103) use (%) use (%) water is managed by a state level official who Alabama 4,250 6 94 issues permits to pump water based on the Alaska 604 40 60 amount of water available in the aquifer and the Arizona 4,220 42 58 expected of the aquifer. Yet in bordering Arkansas 2,480 62 38 Texas there is no such state authority, and much 32,100 32 68 pumping occurs in Texas that is governed by Colorado 3,750 16 84 nothing other than the willingness of a landown- Connecticut 3,270 4 96 er to drill a well and pump. The result is, on this Delaware 717 7 93 border and others in the USA, a situation where D.C. 554 3 97 Florida 14,200 24 76 water is managed well on one side of the politi- Georgia 7,200 20 80 cal boundary and not managed, in any real Hawaii 1,190 27 73 sense, on the other (often to the determent of the Idaho 1,160 19 81 side that manages its water well). Illinois 11,800 5 95 Indiana 5,800 8 92 Iowa 2,840 17 83 1.3 Summary of contents Kansas 2,570 67 33 In this chapter, we will first review a brief histo- Kentucky 3,860 5 95 ry of groundwater management and develop- Louisiana 4,340 14 86 Maine 1,240 25 75 ment in the USA, paying particular attention to Maryland 5,040 3 97 the role of government over time; and then sum- Massachusetts 6,070 6 94 marize some of the pressing groundwater man- Michigan 9,550 7 93 agement problems that face the USA, and exam- Minnesota 4,610 21 79 ine the barriers that these problems can present Mississippi 2,700 81 19 to effective, cooperative groundwater manage- Missouri 5,320 13 87 ment. Then we will summarize the political and Montana 870 2 98 legal systems that govern groundwater manage- Nebraska 1,640 59 41 Nevada 1,530 40 60 ment and allow for rational, collective ground- New Hampshire 1,150 6 94 water management decisions. (Or, as is often the New Jersey 7,950 9 91 case, makes such decisions difficult). Finally we New Mexico 1,690 49 51 will examine what the USA experience might New York 18,100 6 94 hold for other countries trying to manage North Carolina 7,200 6 94 groundwater effectively. North Dakota 641 11 89 Ohio 11,200 8 92 Oklahoma 3,280 60 40 Oregon 3,140 13 87 2 HISTORICAL OVERVIEW Pennsylvania 12,100 9 91 Rhode Island 990 7 93 In the USA water management in general, and South Carolina 3,670 5 95 groundwater management in particular, has been South Dakota 729 41 59 the responsibility of local governments. In the Tennessee 5,260 5 95 late 1800s the USA Congress passed several Texas 18,700 30 70 bills that prohibited discharging of refuse and Utah 1,950 18 82 anything else that would impede navigation into Vermont 585 9 91 the nation’s rivers. These were measures Virginia 6,620 4 96 Washington 5,430 20 80 designed primarily to facilitate trade among the West Virginia 1,830 3 97 states consistent with the federal government’s Wisconsin 5,100 10 90 responsibility to oversee interstate commerce. In Wyoming 480 5 95 the early and middle 1900s, the federal govern- Puerto Rico 3,760 6 94 ment was involved in surface water develop- Virgin Islands 103 1 99 ment projects primarily through the dam build- USA 267,100 20 80 ing and other construction activities of the U.S.

258 13-Smith.qxd 02-10-2002 19:59 Pagina 259

Groundwater collective management systems: the United States experience

Army Corps of Engineers and the U.S. Bureau the regulation of groundwater to state and local of Reclamation. Then in the early 1970s, the governments. (It should be noted that tribal gov- federal government again became involved in ernments on federal Indian reservations have not water management with the passage of been as willing to differ to state authority.) control laws which basically set up requirements In summary, the role of the federal govern- for control that are administered ment in groundwater management in the USA by state governments. has been limited. However this limitation is not Although some of this federal activity due to any constitutional or legal barriers, but impacted groundwater management, the federal rather is self imposed and due to historical and government nearly always acted pursuant to cultural factors. Such limitations are not uncom- state and local law and did not exercise any mon in many large (federal) countries including independent federal authority over groundwater , Pakistan, Brazil, and the People’s management. Republic of . If the role, or lack thereof, of the federal gov- ernment is the first thing that one must under- 2.1 The federal government stand when examining groundwater manage- Given the extension of the federal government ment in the USA, then surely the second most into a wide variety of domestic issues, there’s no important fact is the topography of the and reason to conclude that the federal government the relationship between land formation, histor- could not have become involved in groundwater ical patterns of settlement, and groundwater law. management if it had chosen to do so. The fed- Groundwater management systems in the USA eral government has used the federal commerce have formed in large part in relationship to the power of the USA Constitution as the grounds to form and volume of groundwater found in a par- insert itself into many activities that might oth- ticular region and the period in which the region erwise have been considered the responsibility was settled. of state and local governments. In groundwater law specifically the USA Supreme Court addressed this issue in the late 1970s and early 2.2 Topography and settlement 1980s wherein the court found a constitutional The USA is a physically diverse land area. basis for the management of groundwater Within the boarders of the USA, you can find (Smith 1986). Finally the federal government climates that range from the tropical to the arc- has clear authority over the management of tic, as well as rainfall averages of less than groundwater resources on federal reservations. 51 mm/yr to over 10,160 mm/yr of (USGS Federal reservations include any that have 2000b). These extremes have resulted in numer- been reserved for some federal purpose and, per- ous different adaptations and innovations in haps most importantly, Indian reservations. On a water management. Knowledge of the diversity federal reservation the federal government (or and climate conditions is vitally important to tribal government in the case of Indian reserva- understanding the management of water issues, tions), has reserved to it the right to use water particularly groundwater. that originates on the reservation in any way that Geographically the USA is bordered by the is consistent with the reason for originally creat- Pacific Ocean on its western coast and the ing the reservation. These water rights date to Atlantic Ocean on the east. The Southern border the time of the creation of the federal reservation of the USA buttresses Mexico from Texas to and are superior to rights that may be created by California and the Gulf of Mexico from Texas to state governments subsequent to the creation of Florida. The northern border of the USA is the reservation. Yet even in a federal reservation shared with Canada. Moving from east to west situation, where the federal right to manage from the Atlantic seaboard to the base of the groundwater originating on federal lands is Appalachian Mountains, much of the east coast clearly superior to any state law, the federal gov- consists of low-lying rolling hills. On the west ernment has, in many instances, deferred to state side of the Appalachian Mountains begin the law and opted to follow state permitting proce- central plains that are home to much of the dures. This exemplifies the extent to which the nation’s . The central plains lead up federal government has been willing to concede to the Rocky Mountains, and the further one

259 13-Smith.qxd 02-10-2002 19:59 Pagina 260

Z.A. Smith

moves towards the west the more arid the cli- from which it is taken. Under the rule such use mate. The Rocky Mountains are the highest may be reasonable even if the water is used on landmass in the continental USA, reaching other land provided that it does not injure neigh- 4,267 m. West of the Rockies, from the border of boring landowners. Finally, if the water is used the central plains to the Pacific Coast, is very on land other than that from which it is with- arid and includes the region stretching from drawn it is unreasonable and illegal if it inter- Eastern Washington in the north down to the feres with or injures the use of neighboring southwestern states of Arizona and New property owners. This relatively simple modifi- Mexico. On the far west of the USA the west cation of the English Rule is quite important, coast varies from quite arid in Southern and still underlies most groundwater law in the California to very moist in the Pacific USA. Prior to the adoption of the American Rule Northwest. of reasonable use a land owner could pump as When studying water in the USA, a repeated much water as he or she wanted to without con- point of demarcation is that of the one-hun- cern about the impact that such pumping might dredth meridian. This defining line runs north have on neighboring land owners. All of these and south through Texas, Oklahoma, Kansas, laws will be discussed in greater detail below. South Dakota, and North Dakota and is general- Although most states follow some adaptation ly the mark between those areas that get of the American Rule of reasonable use, there 508 mm/yr of moisture or more and those that have been several variations (notably in the get less. Most of the early settlement in the USA western more arid part of the USA). The most was well east of the hundredth meridian in those important of these developments was the prior parts of the country where rainfall was pre- appropriation doctrine. The prior appropriation dictable and sources of water, both above and doctrine has had its greatest impact felt on the below ground, plentiful. Consequently, ground- law of surface in the Western USA, but a water law and management systems originally number of states have used variations of prior developed in parts of the country where water appropriations to govern groundwater use as scarcity was not an issue. well. Basically, the prior appropriations doctrine holds that those extracting water from the ground can fix their right in time based on when 2.3 Development of law they started the appropriation. In other words, Most of the original white settlers of what was first in time first in right. In surface water law to become the USA emigrated from England. this means that the right to extract water from a These settlers brought with them the legal sys- river may or may not be connected to the own- tems with which they were familiar. In ground- ership of land adjacent to that river (this is water management this means they brought a exactly the opposite of the riparian doctrine for property rights system that has come to be surface waters that is followed in most of the known as the absolute ownership doctrine or Eastern USA). In groundwater, prior appropria- English Rule. Under the absolute ownership tion has developed differently. Prior appropria- doctrine, or the English Rule, the owner of the tion in groundwater almost always requires surface is the owner of all that’s underneath the some form of land ownership (the exceptions whether it is solid, semisolid or fluid. The being when the right to extract has been sold or English Rule or the absolute ownership doctrine transferred). Hence, the right to appropriate is was the basis for groundwater law throughout still based on land ownership, although the vol- most of the history of the USA and still forms ume or amount that may be withdrawn, in some the basis of that law in most states, particularly states, is determined by the priority of the appro- east of the one-hundredth meridian. The first priation. So for example if three adjacent modification of the English Rule was something landowners are all pumping an equal amount of called the American Rule or the rule of reason- water and there is a shortage of groundwater, to able use. Simply stated the American Rule of determine who might be required to curtail their reasonable use held that every owner of surface pumping the courts or a government administra- land had a right to withdraw groundwater and tor would, among other things, seek to deter- make use of that water, if such use is reasonable, mine when each individual started their pump- and if the water is used beneficially on the land ing and how much they had been pumping.

260 13-Smith.qxd 02-10-2002 19:59 Pagina 261

Groundwater collective management systems: the United States experience

Most developments in groundwater law their neighbors. The absolute ownership doc- occurred in the Western USA –both in western trine was developed in England and transferred courts and legislatures. Technological changes to the relatively wet East (where it is largely still occurred in the ability to pump water from the the law). The doctrine works reasonably well in ground, which lead to the rapid expansion of areas where there is abundant water available. groundwater pumping, and the development of Familiar with water law in other parts of the irrigated agriculture. These things made clear country, many courts and legislatures in the the limitations of the legal doctrines governing western states, early in their history, adopted the groundwater use and ownership. As it became common law rule. With minor amounts of possible to withdraw greater amounts of water groundwater withdrawn in early western history from greater depths, competition for water and the lack of competition for groundwater developed in some areas. Legislatures in the resources, the absolute ownership doctrine West reacted to conflict over groundwater seemed the reasonable course to pursue. resources in a variety of ways. They changed However, when competition for water did devel- their laws (or perhaps not), depending upon the op in the West, it became apparent that there controversies involved, the participants, the were drawbacks to the absolute ownership doc- interests, and the pressure lawmakers felt. Some trine in an arid environment. It was shortly after states, due to early conflicts over groundwater competition for water developed that modifica- (New Mexico, for example), were quick to write tions of the rule started to be made. relatively comprehensive groundwater manage- One modification made by many courts in the ment statutes. In other states, notably Texas and West was the reasonable use doctrine, or the California, early water law has changed greatly American rule. Basically, the reasonable use yet retained significant parts of the old law, as it doctrine limits a landowner’s right to the water existed prior to the rapid development of beneath his or her land to that amount necessary groundwater resources. The four major ground- for some reasonable and beneficial purpose on water law doctrines followed in the USA are the land above the water. The waste of water or outlined in greater detail below, along with a the transportation of water off of the land was general discussion of how groundwater law has not considered a reasonable beneficial use if changed since the turn of the century. such use interfered with the right of adjacent Interestingly, although there are some important landowners to use the water beneath their own exceptions –particularly dealing with Crown lands for the beneficial use of those lands. (national government) Lands– these four doc- Some states, notably California, developed trines are also followed in Canada. the correlative rights doctrine as an alternative to The four primary legal doctrines governing the absolute ownership doctrine. Basically, the groundwater use then are the English, or com- correlative rights doctrine recognizes the mon law, rule of absolute ownership, the landowner’s right to use the water beneath his or American rule of reasonable use, the correlative her lands but limits that right somewhat by pro- rights doctrine, and the doctrine of prior appro- viding that landowners overlying a common priation. Generally, groundwater law in the source of groundwater have equal, or correlative, western states has evolved during this century rights to a reasonable amount of that water when from the English, or common law, rule of the water is applied to a reasonable beneficial use absolute ownership to either the American rule on the land overlying the groundwater basin. of reasonable use or (in most western states) the Most western states have adopted some form doctrine of prior appropriation. of the prior appropriation doctrine. The prior As we have seen the common law, or appropriation doctrine simply provides that the absolute ownership doctrine, holds that the first appropriator of water, by putting that water water beneath one’s land is the property of the to beneficial use without waste, has a right to landowner and may be withdrawn, without mal- continue that use. And such rights are superior to , with no regard to the effect that withdrawals the rights of people who appropriate water at a have on any other landowner. In theory, and in later date. In prior appropriation states, water practice in many areas, this meant that landown- rights are usually administered by a state official ers could pump at will the water beneath their or office (often a state engineer) through a per- lands as well as the water beneath the lands of mit procedure.

261 13-Smith.qxd 02-10-2002 19:59 Pagina 262

Z.A. Smith

The overwhelming majority of western states and how changes in the law have mirrored found that the common law was ill fitted to the changes in water use and society. Stability of arid West and changed to one of the other doc- water ownership is essential for economic trines, usually the prior appropriation doctrine growth and long-term planning. Farmers or cities (Ashley & Smith 1999). are not likely to build expensive water develop- ment facilities if their ability to use to the may be called into question at some 2.4 Beneficial use point in the future. It may have appeared to poli- The concept of beneficial use repeatedly comes cymakers early in the history of the country that up when examining groundwater policy and law the common law doctrine, or the absolute owner- as a beneficial use is almost always a requirement ship rule, would provide the stability necessary of groundwater use. The Utah Code is typical for long-term planning. In fact, in the absence of when it states in section 77-1-3 that beneficial competition for , the common use “shall be the basis, the measure and the limit law doctrine did provide that stability. However, of all rights to use water in this state”. The bene- when competition began to create conflict for ficial use concept was developed during the 19th groundwater resources, it became clear that one century to encourage economic efficiency. pumper might find the use and enjoyment of his Although it may seem straightforward what is or her groundwater threatened by the activities of beneficial has meant different things to different pumping on adjacent lands. Converting to the people. Some uses have always been considered doctrine of prior appropriation, as most western beneficial (for example, water for domestic pur- states did, provided the stability necessary for poses or for irrigation, , or stock pumpers to understand what their rights were and watering), it is beyond these traditional uses to plan for the long-term use and development of where there sometimes is conflict and controver- their water. sy over what constitutes a beneficial use. For This same stability, however, has tended to example, some courts have found water needed favor those interests that were early to acquire for the protection and propagation of fish to be a their water rights, and, to the extent that water beneficial use, while others have not. Courts and laws prevent the transfer and change of owner- state legislatures have also been split on the issue ship of water rights (as they do in some states), of whether or not water necessary for recreation, the law has favored those historical uses and has fish, aesthetic, or scenic uses is a beneficial use of prevented change in water use patterns and the water. (This can be a problem in groundwater development of alternative uses. So groundwater regulation because of the relationship between law has provided stability necessary for econom- surface water and groundwater in streambeds). ic growth and expansion. In later years, that same For example, in Arizona water can not be stability has, in some states, prevented changes in reserved to protect the life of a stream (the flora water use and, some would argue further eco- and fauna in the streambed), as that is not consid- nomic growth and development. Some states, as ered a beneficial use in that state. In contrast ben- we will see, have responded very little to chang- eficial use in the State of Washington Code sec- ing groundwater use and conditions. The result, tion 90-54-020 also includes water for aesthetic in some cases, is that the resource is poorly man- and fish or purposes. In New Mexico the aged if managed at all. State Engineer once determined that mine dewa- tering (the pumping of water out of the ground –which then becomes waste– so that the ground 3 GROUNDWATER PROBLEMS can be mined), was not a beneficial use and that hence he had no legal basis to control mine dewa- To better understand the challenges facing tering. groundwater managers in the USA –or stated another way, the obstacles to cooperative man- agement, we need to understand the groundwater 2.5 Social functions of groundwater management problems facing those managers. It is difficult to understand the importance of Like groundwater management laws, groundwa- groundwater law without taking into considera- ter problems vary from region to region yet there tion the social functions that water law has served are a number of recurring issues when one exam-

262 13-Smith.qxd 02-10-2002 19:59 Pagina 263

Groundwater collective management systems: the United States experience

ines groundwater policy. Overdrafting (the es, not being naturally replenished). extraction of water from an aquifer at rates that Unfortunately are sometimes managed exceed natural recharge), land , pollu- (or perhaps more accurately, not managed) with tion, , and the division of little thought of the future consequences and responsibility over who should manage ground- foregone opportunities. water resources are issues that often arise in the USA as elsewhere. The diversity in the states and 3.2 Land subsidence differences in their hydrologic, political, and legal environments make generalizations diffi- A problem related to overdrafting is land subsi- cult, but clearly the different legal and manage- dence. Prior to the lowering of the in ment systems employed in the USAhave impact- a given groundwater basin, the soil is partially ed the ability of the states to deal with these prob- supported by grain-to-grain contact and partially lems. supported by the surrounding water. The removal of the water in such a situation causes vertical and horizontal stresses and may result in the set- 3.1 Scarcity tling or subsidence of the land surface. Land sub- In the arid Western USA the primary problem is sidence has been a problem impacting more than one of overdrafting –or scarcity. Probably the 44,030 km2 of land (an area roughly the size of best-known overdrafting situation in the West has New Hampshire and Vermont combined) in 45 occurred in the , a huge water States (USGS 2000a). Like overdrafting land source for the Great Plains area that includes por- subsidence has often not been addressed in states tions of New Mexico, Texas, Oklahoma, Kansas, that still follow the absolute ownership doctrine. Colorado, Nebraska, Wyoming, and South Dakota. Covering an area of roughly 647,000 km2, 3.3 Pollution the Ogallala supports one-fifth of the irrigated agriculture in the USA. In some places pumping Another groundwater management problem is from the Ogallala has resulted in the withdrawing pollution –either in the form of pollution from of water at a rate 14 times faster than its rate of nat- substances on the surface getting into groundwa- ural replenishment (Russell 1985). Again, the ter basins or pollution from salt-water intrusion. impact of overdrafting on the Ogallala varies sig- Water may be polluted by salts either occurring nificantly depending upon the region. For exam- naturally or by virtue of the migration of salt- ple, in the Texas panhandle many farmers have water into resources. Pollution, already converted to dry land farming (i.e. without whether or not it occurs in the east or the west, irrigation), whereas Nebraska is comparatively usually involves an entire different set of players. untroubled. In the USA, pollution activities are generally In a situation of scarcity there is naturally governed by one set of laws whereas other laws competition between groundwater users and govern allocation and use activities. pressures put on management systems to manage Consequently , with the waters in an equitable manner. In states that still exception of salt-water intrusion, will not be dis- follow the absolute ownership doctrine, like cussed here. Salt-water intrusion also has a Texas, competition ultimately has led to the mixed management record. Although states that depletion of the resource –overdrafting to the still follow the absolute ownership doctrine have point of the water becoming useless for most eco- not managed this problem well neither have nomic purposes. In states with well-defined man- many other states following various other man- agement systems (discussed below), overdraft- agement systems. ing has led to redistribution and regulation of water resources. When groundwater depletion and overdrafting is planned for, competition, 4 GROUNDWATER MANAGEMENT over utilization, and economic disruption can be REGIMES minimized. In some regions overdrafting (or more correctly in this context) may be the By now it should be clear that the management only rational way to manage the resource (e.g. in of groundwater resources in the USA is a com- areas where aquifers are, for all practical purpos- plex system that varies significantly from

263 13-Smith.qxd 02-10-2002 19:59 Pagina 264

Z.A. Smith

region to region. It might be useful to describe Through each of these descriptions the reader types of groundwater management systems as will be exposed to the wide variety of collec- existing on a continuum that varies depending tive management systems in use in the USA. upon the amount of government control, as it Again generalizations are difficult but I have can be seen in this relation: categorized the examples into: collective dis- 1) No regulations. trict management systems, court appointed 2) English Rule: absolute ownership. watermasters, weak district management, little 3) American Rule: reasonable use and cor- or no management, and state permit systems. relative rights doctrine. 4) Government controls of type and rate of extraction under special circumstances 4.1 Water districts (usually under prior appropriation). In many parts of the USA, primarily in major 5) Government controls of type and rate of metropolitan areas and where severe overdraft- extraction under all circumstances. ing has caused economic disruption, water dis- On this continuum on the first step (1) we tricts have been created, either by the courts or would find anarchy or no government control state legislatures, and given authority over or regulation whatsoever. Although there is no groundwater management in their jurisdictions. anarchy in groundwater management in the Water districts take on a variety of forms. USA (property ownership is a minimal require- Some are created by a specific legislative act; ment even in the most lax systems), the others are created under general acts that allow absolute ownership doctrine comes fairly close. for district creation under local option. On this side of the continuum the owner of Methods of selection of district governing bod- land may do as s/he pleases with that water ies vary from independent election by all dis- beneath the land. Parts of Texas and California trict voters, election by property owners and in the Western USA and several eastern states various methods of appointment. There are fall into this category. On the last step (5) of thousands of such districts in the USA. These the continuum we would find total government districts vary significantly in their powers, control over the administration withdraw and functions and methods of creation but often use of groundwater. Although there are no sys- they have the authority to levy taxes, issue tems in the USA that involve this level of con- pumping permits, issue both general obligation trol there are some systems, notably those in and revenue bonds (borrow money), and set which groundwater withdrawals are regulated rates for service. by a state level bureaucrat through a permit The Orange County Water District (OCWD) system, which come close (Oregon, in California, which has been referred to as a Washington and New Mexico are examples). leader in the water district non-adjudication The states and regions of the USA fall some- approach to groundwater management, pro- where between number two and four on the above continuum. The regimes which fall clos- vides an example of groundwater management er to number four and five on the continuum by local district. The OCWD has extensive are those that are most likely to have the tools powers to require data from groundwater necessary to actively manage groundwater (by pumpers; regulate pumping patterns; levy a doing things such as setting up recharge sys- pump tax and through a basin equity assess- tems, importing and injecting water or regulat- ment regulate the cost of groundwater in order ing pumping). to influence the amounts of ground versus sur- To attempt a state-by-state breakdown of the face water being used. A major function of the legal regimes that govern groundwater in each OCWD is to recharge groundwater basins with of the 50 states and their many political subdi- imported surface water and natural run-off. For visions in the USA is beyond the scope and this purpose the district owns 405 ha in and capacity of this chapter. Although the reader adjacent to the Santa Ana River. The OCWD can find such breakdowns elsewhere (Ashley & also has a comprehensive salt-water intrusion Smith 1999). Instead a sample of types of sys- mitigation plan consisting of a series of barrier tems representing the various types of manage- pumps along the California coast designed to ment in the above continuum will be presented. prevent intrusion (Smith 1984).

264 13-Smith.qxd 02-10-2002 19:59 Pagina 265

Groundwater collective management systems: the United States experience

4.2 Court watermasters and depletion in some areas but no attempts In states where the courts have adjudicated (except Harris-Galveston –the Houston area– groundwater rights, the courts have sometimes where subsidence has been a major and serious appointed a water master to manage groundwa- problem) have been made to control ground- ter basins consistent with court rulings. The water pumping and thereby extend the life of powers of a watermaster are similar to those the aquifer. This failure (which it may or may held by water districts. For example, the San not be, depending on one’s perspective –clear- Gabriel California watermaster, a nine-member ly many groundwater pumpers are happy with court-appointed body, can operate a groundwa- the status quo) is due to the fact a landowner’s ter replenishment program, control basin stor- absolute right to the water beneath his or her age and levy a replacement water assessment land cannot be abrogated by a UWCD, and on the amount of withdrawal in excess of a counties (local units of government) can decide pumper’s adjudicated share. Watermaster not to be part of a UWCD when it is created. arrangements are particularly prevalent in As this example shows creating groundwater California, where nearly all groundwater basin management districts is not –in and of itself– wide court cases have ended with parties reach- going to insure sound groundwater manage- ing agreement on the allocations they believe ment. The composition and powers of a district to be fair and reasonable, and agreeing to are as important as the creation of a district watermaster management. itself.

4.3 Collective management 4.4 Limited controls These two examples of district collective man- Texas also provides a good example of the next agement systems are management arrange- type of management examined here –no or lit- ments that fall somewhere between three and tle management. In many parts of the USA four on the continuum presented above. They groundwater pumping is virtually unregulated can have fairly strong authority to manage (a permit may be required but this is a formal- groundwater in a way that will prevent waste ity in some places). Although often this occurs and will lead to the orderly development of in rural unpopulated areas (and therefore is not groundwater resources. However not all dis- a problem), it also sometimes occurs in popu- tricts are created alike. Districts can just as eas- lated areas and sometimes occurs with the ily be created with limited powers, and very lit- result that competition or the resource leads to tle ability to control groundwater pumping or economic disruptions. In rural areas all over the provide any kind of real management. Such USA can dry up when neighboring types of districts are not uncommon in the landowners dig deeper wells and lower water USA. For example, since 1949 Texas has tables. In parts of Texas and Oklahoma, as well allowed the voluntary creation of underground districts (UWCDs), with as elsewhere, lowered water tables have forced discretionary power to regulate groundwater farmers out of irrigated agriculture. This is a withdrawals as long as landowners did not lose type of water management we see in areas all their ownership of groundwater. UWCDs have over the world. Sometimes referred to as the the power to provide for the spacing of wells right of capture and not always connected with and to regulate the production of wells, and land ownership, groundwater managed in this other powers to enable them to, as the Water manner is only managed in the loosest sense of Code (section 52.117) states “minimize as far the term. The disruptions of non-management as practical the of the water table”. of groundwater basins are familiar to the read- Although over forty UWCDs have been creat- ers of this volume. This is a particularly diffi- ed in Texas, they have not, for the most part, cult problem in groundwater basins that cross- been effective managers of groundwater (only political borders. In those situations, competi- one –the Harris-Galveston Coastal Subsidence tion for water can lead to depletion of the District– has directly regulated pumping). Well resource and economic and social disruption spacing requirements undertaken by some dis- for people on both sides of the border. (This tricts have slowed groundwater development will be discussed in greater detail below).

265 13-Smith.qxd 02-10-2002 19:59 Pagina 266

Z.A. Smith

4.5 Permit systems in the state. In contrast in Oklahoma, New The next type of groundwater management sys- Mexico, and other states, the amount of water tem we will examine is best described as available in a groundwater basin is determined statewide permit management systems. and permits are issued with the specific knowl- Typically this type of management involves a edge that the water being withdrawn represents single government authority (often called a state overdrafting and that the aquifer will eventually engineer in the USA –someone who is usually be depleted (the years allowed until depletion appointed by the state chief executive) that has vary from 20 to 100). In these primarily arid the responsibility to issue drilling, well spacing states management is predicated on the idea that and extraction permits for groundwater. the water being managed is essentiality non- However, these water managers vary signifi- rechargeable, so the decision has been made for cantly both in terms of their formal powers and the orderly depletion of the resource. how they choose to administer the powers that It is difficult to generalize about where on the they have. In some states, such as Arizona and above continuum state permit systems fall. As New Mexico, state jurisdiction only applies to some follow the American Rule, others follow those areas where the state has asserted jurisdic- forms of prior appropriation and all vary in tion (in Arizona, for example, through the cre- terms of the practical application of whatever ation of a Groundwater Active Management form of management followed. Area by the state legislature or other means and in New Mexico through the designation of a groundwater as a declared groundwater basin 5 COMPETITION by the state engineer). In other states authority extends statewide. In nearly all cases this office The primary focus of this book and this chapter determines how much water is available where is groundwater competition and how it is or and makes decisions determining its allocation should be managed. It is this author’s opinion where there is surplus water or where a water that the value of the groundwater management right becomes available. That is about where the experience in the USA for the rest of the world similarity ends. In some states, notably in more is primarily in how to avoid certain problems. humid climates and where aquifers recharge nat- The USA may have a lot to teach the world urally, groundwater may be managed on a safe about what not to do in this instance. Before pur- yield basis, permits are issued for the extraction suing that argument we will first examine of amounts of water roughly equal to the amount groundwater competition in the USA and how of water that returns to the aquifer each year. It the systems in place for managing groundwater is interesting to note, however, that law rarely have dealt with competition. mandates this groundwater management philos- First it should be noted that competition for ophy. Most of the laws governing how state offi- groundwater resources within the states of the cials should issue permits are written in a simi- USA has often been managed reasonably well. lar way –but are interpreted differently. For Most states have, either through the administra- example, the North Dakota State Water tion of permit systems, the creation of manage- Commission and the North Dakota State ment districts, or through court decisions, found Engineer have been managing the state’s ways to minimize competition for groundwater groundwater resources via a permit system in a resources. In several notable examples, howev- manner designed to prevent groundwater over- er, largely in the southwest and lower mid-west, drafting for many years. Although there is no competition has not been managed well with the provision in the North Dakota Code that result that some water users have been forced requires the state engineer to do so, the engineer out of business. Also in some cases, notably in has interpreted Section 61-04-06 (which is sim- California, the transaction costs of stable man- ilar to laws in many states and directs that per- agement (the time and resources that have been mits for water only be issued when there is expended to achieve sound management), have unappropriated water available), as providing been great and hence these situations cannot be the authority to manage groundwater on a long- recommended. term safe-yield basis. Consequently, with one At the risk of being redundant, by way of minor exception, there is very little overdrafting introduction, let me cover some familiar ground.

266 13-Smith.qxd 02-10-2002 19:59 Pagina 267

Groundwater collective management systems: the United States experience

Since groundwater is a common pool resource, sent to states where no one responded. In international and interstate competition for states with heavy interstate competition and/ groundwater resources can result in inefficient or problems response rates were close to management of those resources. In common 100%. pool situations, the problem is primarily one of The study found that there was significant a lack of definition and enforcement of water competition for groundwater resources all over rights. By not utilizing the water available the contiguous 48 states and in several areas beneath the soil, a groundwater pumper may be along USA borders. Also many areas were iden- saving that water for use at some future date, but tified where competition may be expected to may also be running the risk that some other develop in the future. For a detailed summary extractor will take the water first. and a map available on line the reader is referred There is competition for groundwater along elsewhere1. The survey results show, in part, many parts of the USA-Mexico border. With the how the groundwater management systems that exception of the Yuma area, there is no interna- have developed in the USA have adapted to con- tional authority that can prevent either country ditions of competition. Although there are from increasing groundwater extractions. instances of informal agreements where, outside Competition for groundwater resources along the force of law, groundwater pumpers have the USA-Mexico border will likely intensify in made sharing arrangements, there are many coming years, in part because of projected pop- more cases where competition continues and ulation increases and increased industry on both promises to lead to poor management of the sides of the border. This situation encourages resource. In many cases one state is powerless to each nation to surpass its neighbor by develop- curtail the pumping taking place in an adjacent ing its groundwater resources as rapidly as pos- state. In some cases this pumping is specifically sible. If allowed to continue, it could lead to the designed to remove water form an adjacent state point of depletion for practical purposes the that is powerless to control the withdrawals. groundwater resource. The situation is similar The national government could intervene to on interstate borders in the USA and along parts manage groundwater but the political costs of of the USA border with Canada. national intervention are great and the states are usually more or less even players on the nation- al level. Furthermore the national government 5.1 In the USA has traditionally shown no interest in interven- ing in state groundwater management. All of In an effort to measure the extent of competition this means that the states are more than likely for groundwater resources on interstate and going to have to deal with interstate competition international borders in the USA, I conducted a on their own –there is no national groundwater survey of water managers and other experts in policy that will deal with this problem and the the 48 contiguous states. In this survey, 302 laws of the several states are not well suited to water policy makers and administrators, univer- dealing with this problem. sity faculty and others concerned with water management in the 48 contiguous states, and Mexico and Canada, were identified through an 6 WHAT DOES IT ALL MEAN? Internet search conducted on each state and province. These individuals, in September 2000, As is abundantly clear to anyone who studies were mailed a questionnaire requesting the loca- groundwater management on the planet, we tion of any interstate/international aquifer where need to develop systems for managing ground- there was competition for groundwater. water under conditions of scarcity, which will Respondents were also asked the name of the allow for planned development and social equi- aquifer and to identify any problems related ty. Should water use and management be deter- to competition. Survey participants were also mailed self-addressed envelopes and indi- 1 The full results are scheduled to be published in an upco- vidualized cover letters explaining the study. ming edition of Water International the quarterly journal 92 responses were received. There was no of the International Water Resources Association. A map discernible trend to the nonrespondents. Follow- showing the areas of identified interstate competition can up letters and a second questionnaire were be found at http://jan.ucc.nau.edu/~zas/ISGWMAP.htm

267 13-Smith.qxd 02-10-2002 19:59 Pagina 268

Z.A. Smith

mined by who has the most money to dig deep- the political, cultural and social conditions in er and sink more powerful wells? Is there a soci- other countries, the USA groundwater manage- etal interest that should influence who gets how ment regime may be one not worth importing. much water? If the answer to the first question is The groundwater experience in the USA is no, then the answer to the second question is useful for examining what works well and what yes. What can we learn from the groundwater does not. Voluntary management systems (basi- management experience in the USA? cally common pool management) are in place in parts of the USA, and they have not managed groundwater well in conditions of scarcity. 6.1 Lessons from the USA Court mandated management systems have In the USA, as in other countries, the formation worked very well but are very costly to create of law and policy is greatly influenced by what (both in time and money necessary to carry out many scholars refer to as our dominant social court cases). District management systems, with paradigm (DSP) (Smith 2000). The DSP consti- a clear mandate and the necessary power to con- tutes those clusters of beliefs, values, and ideals trol and monitor pumping have worked well as that influence our thinking about society, the have statewide administrative systems. At the role of government, and individual responsibili- risk of sounding simplistic, any groundwater ty. The DSP in the USA can be defined in vari- management system, in order to be effective, ous ways but includes acceptance of laissez- will have to be able to regulate pumping (with faire capitalism, individualism, limited govern- permits, well spacing, limits on well size and ment, growth as progress, and a faith in science other means), collect data to determine water and technology. Perhaps the most important availability and the rate of drawdown, and pro- components of the DSP in the USA are free vide infrastructure (for example barrier wells or market economics, faith in science and technol- spreading basins). These are things one can ogy, and a growth orientation. In groundwater learn from the USA experience. Having said policy in the USA the DSP creates an environ- that, however, the USA experience also shows ment in which it is very difficult to limit indi- how rigid permit systems can be dysfunctional. vidual pumping (which represents the freedom Unless administered with flexibility –the flexi- to do as one pleases with ones property) or cre- bility to take into consideration changing geo- ate governmental institutions with the powers logic and social conditions, and unless adminis- necessary to manage groundwater effectively tered with local stakeholder input such systems (due to an overall suspect of government and become rigid and are susceptible to cooptation desire for limited government). Consequently, in by the same interests that can come to dominate many cases sound groundwater management in groundwater management in other types of man- the USA has often only occurred when problems agement systems. reach crisis proportions (like the land subsi- The USA experience also provides other les- dence in Texas, or the salt-water intrusion in sons on how not to manage groundwater. First, in many parts of the country). a water rights system which puts primary empha- In this era of globalization, when much of the sis on property rights and money (the ability to world is rushing to embrace free trade and mar- drill new wells) above other things (as is the case ket economies, the dominant features of the in many parts of the USA), we can expect that DSP in the USA are being exported and adopted powerful interests will dominate water use and in many places that previously had other types availability. People living off shallow wells lose of political and social traditions. The USA has in such a system if they cannot afford to drill new never had a communitarian orientation toward wells. Such a system will cause conflicts in coun- its citizens and terms like social democracy or tries that place some societal values above prop- social capitalism are likely to elicit critical erty rights and money. Second, water manage- responses when introduced into political dialog ment reforms, will not work if they are dependent in the USA. on the goodwill of local pumpers or managers Hence, both because of its inability to man- who are beholden or under the influence of pow- age water effectively, efficiently and equitably erful local interests. When management districts in some areas, and because of underlying politi- have been proposed in the USA that threatens cal principles which may not be consistent with powerful local interests, they have usually been

268 13-Smith.qxd 02-10-2002 19:59 Pagina 269

Groundwater collective management systems: the United States experience

defeated or resulted in the creation of districts erning body directed by local or regional stake- that have no authority to regulate pumping. Such holders. In this context stakeholder should be reforms are false reforms, and will only allow the defined broadly and include everyone with an continuance of the domination of groundwater interest in water management –water impacts use by powerful interests who benefit from the the entire community; the entire community status quo. For this reason, poor reform is worse should have a right to participate in decision than no reform. Third, treating water like a com- making impacting water use. Finally, the point modity, like any other commodity, ignores the should be made that there is no correct way to important role water plays in a society and cul- manage groundwater. By this I mean what is ture. In the USA this is exemplified by the loss of good management in one place may be poor farming communities where water has been management in another. Overdrafting can make poorly managed, and by the trend toward mar- sense when groundwater basins are non- keting water in arid areas dependent on agricul- rechargeable. Salt-water intrusion might make ture. Some communities may decide that a rural, sense to mitigate land subsidence. In one com- agricultural setting is a desirable environment. munity small farmers might want to be bought Groundwater management systems that give pri- out by firms who will drill deep tube wells that macy to markets (allowing unrestricted transfer- dry up their wells. In another community this ability to the highest bidder), will not protect may not be the desired course. Locally based these other values. In the American Southwest decision making backed by central authority can are being converted to subdivisions at a allow for this kind of flexibility. rapid rate, and the communities being impacted These are simple principles which, for the have little when any power to plan a different most part, have not been followed in the USA. future. In short, water marketing and an over They would improve groundwater management dependence on property rights ignore other everywhere. important societal values.

REFERENCES 7 SOME CONCLUDING SUGGESTIONS Ashley, J.S. & Smith, Z.A. 1999. Groundwater manage- All of the points above suggest components of ment in the West. Lincoln, NB: University of Nebraska an ideal type of groundwater management sys- Press, 1999. tem. First, systems, like those in the USA, that Russell, D. 1985. Ogallala: Half full or half empty? The rely on property rights alone or which set up Amicus Journal 7(2). administrative arrangements that do not take Smith, Z.A. 1984. Centralized decisionmaking in the into consideration social conditions, or incorpo- administration of groundwater rights: the experience of rate changing geologic and human conditions Arizona, California and New Mexico and suggestions are bound, eventually, to prove dysfunctional for the future. Natural Resources Journal 24. when resources become scarce. Water use and Smith, Z.A. 1986. Competition for water resources: Issues management is a human rights issue when it is in federalism. Journal of and environmental denied from those that need it to lead productive law 2(2). . Management systems should take into Smith, Z.A. 2000. The Environmental policy paradox. consideration of all the people who have a stake Third edition, New Jersey: Prentice Hall. USGS 2000a. U.S. Department of the Interior, U.S. in the management of the resource. Second, Geological Survey. Land Subsidence in the United management systems need to be rigid (with the States, Fact Sheet-087-00. powers to enforce policy) yet flexible. This sug- USGS 2000b. U.S. Department of the Interior, U.S. gests management systems should have the Geological Survey. Groundwater atlas of the United authority and power that usually can only be States. Modified: December 2000 (http://capp.water. vested by a central government but with a gov- usgs.gov/gwa/gwa.html).

269 13-Smith.qxd 02-10-2002 19:59 Pagina 270