| USDA Forest Service
Sourcebook of State Groundwater Laws in 2005
This document was co-authored by Matthew Chapman, then a Presidential Management Intern at the USDA [United States Department of Agriculture] Forest Service headquarters and an attorney formerly in private practice; Stephen Glasser, Water Rights and Uses Program Leader with the USDA Forest Service based in Washington, D.C.; Jack Gipsman and Lois Witte, attorneys with the USDA Office of the General Counsel [OGC] http://www.usda.gov/wps/portal/!ut/p/_s.7_0_A/7_0_1OB?contentidonly=true&navid=AGENCIES_OFFICES&contentid=OGC_Index.xml located in San Francisco and Denver respectively. Work on this document began in late 2000. Since then, many revisions and
updates were made by Stephen Glasser, [which] resulted in this version
in June 2005. This document is one part of a four-part "package" of documents prepared to assist the many Forest Service and OGC personnel in implementing the new ground water resource management program of the USDA Forest Service launched in 2005. The other parts include: (1) FSM
2543 and FSM 2880 policy direction; (2) a Technical Guide to Managing
Ground Water; and (3) an Inventory and Monitoring Guide. The USDA Forest Service is dedicated to the principle of multiple use management of the Nation's forest resources for sustained yields of water, wood, forage, wildlife and recreation. Through forestry research,
cooperation with the States and private forest owners, and management of
the national forests and grasslands, it strives -- as directed by
Congress -- to provide increasingly greater service to a growing nation. The USDA Forest Service prohibits discrimination in all of its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, or marital or family status (not all prohibited bases apply to all programs). Persons with disabilities who
require alternative means for communication of program information
(Braille, large print, audiotapes, etc.) should contact USDA's TARGET
Center at 202-720-2600 (voice and TDD). To file a complaint of
discrimination, write USDA Director, Office of Civil Rights, Room 326-W,
Whitten Building, 14th and Independence Avenue, SW, Washington, DC
20250-9410, or call 202-720-5964 (voice and TDD). USDA is an equal
opportunity provider and employer. USDA is committed to making the
information materials accessible to all USDA customers and employees.
This report forms one part of a
four-part document system for ground water management on the national
forests and grasslands. The other three parts are: Forest Service policy
on ground water in FSM 2543 and FSM 2880, (2) an Inventory and
Monitoring Guide and, (3) a Forest Service Technical Guide to Managing
Ground Water written by an interagency team of experts in the science
and management of ground water. The policy and technical guide are
scheduled for release in 2005. All three parts, when complete, are
intended to provide Forest Service line officers and technical
specialists at all field locations with the policy, science and legal
dimensions of ground water resource management for the first time. The
Forest Service user of this document is strongly encouraged to refer to
all three documents when dealing with a ground water resource issue to
gain necessary insights on how to proceed.
This doctrine is known as reserved rights, and applies to land reserved from the public domain. When the Federal government reserved land from the public domain, it also implicitly or sometimes explicitly, reserved the water needed to fulfill the reservation's primary legislative purpose. As part of the creation of national forests, water rights were reserved for the purposes of securing favorable conditions of water flows and to furnish a continuous supply of timber. The U.S. Supreme Court rejected the United States' claim of reserved
water rights for maintenance of in-stream flows, recreation, stock
watering and wildlife within the Gila National Forest. The amount of water reserved is "only that amount of water necessary to fulfill the purpose of the reservation, no more." However, the reservation encompasses an amount of water "sufficient for the future requirements of the area reserved." The date of the reservation establishes the priority right and the water right applies only to previously unappropriated waters. In Cappaert, the Supreme Court held that the reservation of land withdrawn under the American Antiquities Preservation Act, reserved subterranean water necessary for the maintenance of the Devil's Hole pupfish, and the United States did not have to perfect its water rights according to state law. However, in doing so the Supreme Court refused to define the sub-surface waters where the pupfish lived as "ground water." The Supreme Court and Circuit Courts
of Appeal have never made a determination as to whether the reserved
rights doctrine applies to water lying beneath federal lands. The federal courts have
substantially left the question of whether reserved rights in ground
water exist for a later day. Wyoming and Arizona have addressed
whether there are federally reserved rights in ground water. Arizona
came to the conclusion that the federal government did have reserved
rights in stationary ground water and that those reserved rights entitle
the federal government to greater protection than permittees with only
state law rights. (See section on Arizona Water Law) Should federal courts establish that
the federal government has reserved rights in ground water, federal
agencies will still be presented by similar difficulties encountered
from the New Mexico decision, namely that the use of the ground water
would be confined to the statutory purposes of the reservation of the
land.
The ownership and allocation rules applicable to ground water are usually different from those applying to surface water. The following is a brief overview of ground water law in the United States. While ground water schemes can be divided into a few general categories, there are variations in every state. The USDA Office of General Counsel should be consulted as specific questions arise regarding ground water. States generally follow one of five basic systems of ground water
allocation systems: the "English" rule of absolute ownership;
(2) the "American" rule of reasonable use; (3) the prior
appropriation rule; (4) the correlative rights rule, and (5) regulated
riparianism.
Under this doctrine, the landowner overlying an aquifer has an absolute right to extract all ground water from the aquifer beneath the landowner's property. The overlying landowner can pump as much water as needed without regard to the needs or effect on other overlying landowners. The doctrine worked well in areas where abundant water was available. However, the drawbacks of the doctrine became apparent in the arid environment of the western states. Most of the states that initially followed this rule abandoned it during the late nineteenth and early twentieth century in favor of the reasonable use or "American" rule. States still following the absolute ownership rule include: Connecticut, Georgia, Indiana, Louisiana, Maine, Massachusetts, Mississippi, Ohio, Rhode Island, and Texas. Most of these states have added a permit system to this legal
doctrine as a practical matter.
States applying the reasonable use rule include: Alabama, Florida,
Illinois, Kentucky, Maryland, New York, North Carolina and Tennessee. Most
of these states also use a permit system to track water uses.
Idaho, Kansas, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, and Wyoming apply the doctrine of prior appropriation to ground water. California applies it where surplus water exists above the needs of overlying owners. Arizona, once an absolute ownership state, now has a statutory scheme that creates Active Ground water Management Areas, grandfathers pre-1980 water rights in these areas and sets up a permit administration system. The states of Colorado, Kansas, Montana, Nebraska, Nevada, New Mexico, Washington, and Oregon have combined prior appropriation with critical area legislation to designate areas where new pumping may be prohibited and existing pumping may be restricted to preserve an acceptable amount of ground water. Courts in Idaho have upheld limiting water available for extraction to the annual recharge rate and have issued injunctions against junior wells that exceed reasonably anticipated future rate of recharge. Arizona, Colorado and New Mexico further limit ground water mining and extraction to a rate that will restore the aquifer to the level necessary for economically feasible extraction. Some states exempt ground water that is a by-product of secondary oil
and gas recovery (Wyoming), geothermal resources (California), or water
from mine dewatering (New Mexico).
The states that adopted the correlative rights doctrine include
Arkansas, California, Delaware, Minnesota, Missouri, Nebraska and New
Jersey. Subject to future requirements on
overlying lands, ground water that is surplus to the needs of overlying
owners is available for appropriation for uses on non-overlying land. The
burden of proof is on the appropriator to prove that a surplus exists
beyond prior vested-right uses of overlying landowners. In the event of
a shortage, overlying landowners have first priority. Some uses of
ground water on land overlying a basin have been held to constitute
appropriative uses. For example, the public use of ground water is
typically not an overlying use. Municipalities or public water
agencies generally have appropriative rights, not overlying rights, to
the water pumped from a ground water basin to supply their customers. They
do not exercise the overlying rights of their inhabitants.
Most western, eastern and Midwestern
states now have a permit system for ground water extraction. Permit
requirements differ in each state. Some states require a permit for
all extractions. Others require permits where water is proposed to
be withdrawn from certain designated areas. Some states have a
common permit system for surface and ground water. The definition of "beneficial
use" is a critical issue in analyzing ground water law in any
state. Some uses are universally considered to be beneficial, i.e.,
the use of water for domestic, agricultural irrigation, manufacturing or
stock watering purposes. However, the states differ on whether
protection of fish, recreation, aesthetic, or scenic uses are beneficial
uses of water. Many of the eastern states have
applied their regulated riparian laws to ground and surface waters.
Several states apply separate regulatory schemes to each type of water,
even involving the same legal principles, and a few have enacted
regulated riparian statutes that apply only to ground water. These
statutes have similar provisions and operate with similar good and bad
points as do regulated riparian laws for surface waters. There is
no perfect law. The rest of this report deals with specific state laws, regulations, and some court rulings that govern or affect ground water resources in the forty-two states that contain National Forest System lands, but not lands used exclusively for research facilities.
http://www.fs.fed.us/biology/resources/pubs/watershed/rights_uses/state_gw_laws_2005.rtf (99 pages) |