The Challenges of Rightful Water Distribution

A river runs under it ...

Putting Proper back in “Property” – Part 11

Original land acquisition is relatively simple compared to the issues and imperatives around water, known to some as the ‘universal solvent.’  Water is essential to all living organisms.  We all need it and must have it.

It is a unique commodity in that it can be used over and over and over.  It goes through our bodies, our gardens, our fountains, our factories, our sewage systems, our croplands … into the groundwater, into the creeks and rivers, into the atmosphere … eventually coming back to us in precipitation, snow melt, river water, and well water.  Like blood, water flows.  But who owns it?  How does one attain property in water?  Does it make sense to do so?

In the United States, there are two major approaches to deciding surface water rights: riparian and appropriation, along with minor methods as well.  Riparian rights exist for landowners whose properties exist alongside or are crossed by natural waterways or bodies of water.  Those owners have a natural right to use and enjoy the water in contact with their land.  Several important conditions exist such that they may not divert or interrupt the flow or condition, for that would impede others’ rights to use and enjoy the water in similar fashion.  Riparian rights go with the land, and are not separable.

The right of appropriation, also called prior appropriation, grew out of the mining mentality in the western states, and is a “first in time, first in right” approach.  This method has many facets and contextual issues that must be considered, but it seems fraught with illogical precedents.  In the prior appropriation methodology, water rights are not connected to the land, and they may, therefore, be transferable – sold or traded to others.  This implies diverting water that others may rely on … albeit to lesser and lesser degrees (by virtue of their junior claims to the appropriated flow).  In times of drought, there could be serious imposition to some property holders.

What about the legislative battles raging in Texas right now over landholders rights’ to groundwater: the water beneath their own property?  The problem is that, with modern drilling technology, wells can be sunk to new depths, increasing the ability to extract more water than ever.  In Texas, according to the “rule of capture,” landowners own the water underneath their surface property boundaries – without limit, and they may use or sell this liquid in the same way they would handle petroleum.

This is a serious problem: the two commodities are fundamentally different.

Fortunately, there are several legal limitations on this rule, but a wholesale rethinking might still be in order to forestall the imminent court battles being considered.  A landowner may not pump groundwater to the extent that neighboring property subsides or becomes deformed.  He may not pump his own groundwater to maliciously diminish the access of others.  He may not pump underneath a river’s natural course.  He may not pump in an ecologically sensitive zone – such as the Edwards Aquifer.

Our modern dependence on petroleum products notwithstanding, oil is NOT essential to human survival.  Water is.  Oil does not flow and circulate naturally, and repeatedly, through our environment in the way that water does.  Drilling for oil, extracting it, shipping it, refining it, and selling it, does not harm anybody else’s prior claim to the oil that may or may not exist below their lands.

On the contrary, groundwater is a known quantity, at least indirectly.  If a landowner employs modern technology to extract “too much” water via extensive or deep drilling, then the underground reservoir (aquifer) in a given region, which exists by virtue of local geologic structures, might become noticeably diminished, and even natural creeks, streams, rivers, and lakes can be visibly affected.  Is this fair?

While landowners within a riparian rights environment naturally accept the seasonal ebb and flow of their water usage ability, landowners within the prior appropriation or the rule of capture scenarios have been misled by faulty assumptions.  It behooves all of us to supply them with a more logical and comprehensive system by which to identify the limits of their property, that they may access and extract, annually, a sustainable volume of water on or under their lands.

At the risk of over-simplification, this might be as easy as starting with the 100-year average rainfall in a particular region (watershed), and then calculating the average annual water likely to be under a landowners’ property.  That amount would define the upper limit of ‘property’ in groundwater for that landowner.  Drilling deeper and extracting more water would be considered infringement against his neighbors’ property in their share of the groundwater, and would be considered a crime.

This technique could be thought of as ‘riparianizing’ groundwater.  Invisible by virtue of existing underground and out of sight, we can nevertheless imagine that it is an underground waterway.  In that sense, the bottom edges of many properties run ‘alongside’ a body of water, and this could be interpreted as a riparian system.  If this is seen as stretching matters, I want to emphasize that my goal is to come up with a more consistent system that comprehensively defines a fair and equitable approach to water use and enjoyment.