Groundwater Law Basics

1
Groundwater Law Basics

• Robert Bo Abrams
• Florida A M University, College of Law
• robert.abrams_at_famu.edu

2
Historical Aspect

• Out of sight and unknowable
• Law was hesitant to assign responsibility for
  unknown movement of water underground
• Relatively small scale technologies
• Digging techniques
• Pumping techniques
• Pure rule of capture was fine until cities began
  to open larger wells affecting nearby farms

3
Doctrines

• Capture
• Absolute ownership when captured by pumping
• American reasonable use adds on-tract limitation
• Sharing use among overlying owners
• Restatement 2d reasonable use on tract
• Correlative rights with surplus available off
  tract
• Prior appropriation
• Managerial permit systems
• Organizing principle
• Can be riparianism, priority, use preferences, or
  other basis
• Can be overlaid to proactively implement existing
  law pre-conflict
• Selective critical areas management

4
Issues of Concern

• Informational deficits and costs
• Groundwater-surface water interconnection
• In fact
• Less so in traditional legal regimes
• Must integrate to prevent inconsistencies
• Well interference
• Limiting to safe yield vs. deliberate mining
  decisions
• Aquifer storage and recovery
• Locational aspects, chemical and physical
  limitations
• Security of storage
• Claims of property rights