Tales of French Fries and Bottled Water: The Environmental Consequences of Groundwater Pumping
Glennon, Robert, Environmental Law
Good evening! It's great to be back at Lewis & Clark. I have a number of dear friends on the faculty, and I've been here several times in recent years. I always enjoy my visit. Tonight I'm going to talk with you about groundwater. This is a daunting topic, but groundwater deserves special attention as a critical environmental issue. Let's start with an overview of groundwater use in the United States. The following statistics are pretty familiar, yet immensely sobering. We know that farmers use most of our water, about two-thirds in the United States, but consider that total groundwater usage exceeded 40 trillion gallons in the year 2000. Groundwater now constitutes more than 25% of the nation's supply, and over haft of us in the United States drink groundwater. Since 2000, the United States has experienced unbelievable growth and sustained drought. Farmers, cities, homeowners, and mines have searched for new supplies, and have almost always settled on groundwater. Though staggering, these are the best statistics available from the United States Geological Survey, and they are woefully out of date.
I next want to offer an overview of water law. There is a profound disconnect between what the legal system permits and what the science of hydrology teaches. In the American East, the use of surface water is governed by the doctrine of riparian water rights. If you own a piece of property on a lake or a river, you have water rights to that lake or river. They are shared water rights--correlative rights--because you and your fellow riparian property owners share the common resource. In the American West, settlers developed a different rule--the prior appropriation doctrine. The motivation for that doctrine is sometimes attributed to the aridity of the West, but other systems used different rules. The Church of Jesus Christ of Latter Day Saints (the Mormons), Native American communities, and acequias in Northern New Mexico did it differently. The European settlers who moved west thought of water like other natural resources as something to be used instrumentally, productively.
The prior appropriation doctrine began in California in the 1850s, during the gold rush days. Miners found out that it took a lot of water to mine gold. They realized they needed to develop a system of rules to figure out which miner had rights to what water. There's a wonderful irony in this, because, if you think about it, these miners were thieves. They were stealing gold. Whether they were stealing from the federal government, the native peoples, or Spanish-speaking people is a fair topic to debate, but it definitely wasn't the miners' gold. Yet, the first thing these thieves did was to set up a legal system. So, the prior appropriation doctrine (first-in-time, first-in-right) awards rights to use a specific quantity of water with a specific diversion point, date, and purpose. That's the prior appropriation system.
Now comes the disconnect. When we shift from surface water to groundwater, the rules change, though not in every state. Oregon and a few other states have a version of the prior appropriation doctrine for groundwater as well as surface water, which integrates the two systems. Other states govern groundwater with a right of capture. Like the first case you read in property, Pierson v. Post, (1) involving wild animals, the right of capture considers groundwater a wild resource. If you can get it out of the ground, it's yours. Most states have a third rule, the reasonable use doctrine, which sounds good, but is an oxymoron. It allows a person to pump a limitless quantity of water as long as it is for a beneficial use. However, anything can be a beneficial use. The right of capture and the reasonable use doctrine epitomize the tragedy of the commons. Consider an aquifer as a giant milkshake glass. What the right of capture and the reasonable use doctrine permits is a limitless number of straws in the single glass. …