Lessons from Western Water Adjudication

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Lessons from Western Water AdjudicationApplicat
ion Ogallala Aquifer

• Professor Barbara Cosens
• University of Idaho College of Law and Water of
  the West
• Professor Burke Griggs
• Bill Lane Center for the American West, Stanford

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Lessons

• General lessons
• Managing complex litigation
• Tailoring evidentiary standards
• Developing technology for water management
• The importance of dialogue
• Cost and finality
• Application
• Threshold Question for application to new
  problems is adjudication the answer?
• The problem of legal diversity

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Managing Complex Litigation
Montana Water Court Basins
Idaho SRBA Basins
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Tailoring Evidentiary Standards
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Developing Technology for Water Management
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Legal Land Description

• SE ½, SE, Sec 1, T19N, R20W

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Overlay Color Photography
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Irrigation Ditches and Turnouts
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Irrigated fields
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Select field and turnout
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The Importance of Dialogue
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But Cost and Finality
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Is Adjudication the Answer?
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Ogallala AquiferWater Volume Lake Huron
Blue unconsolidated sand Yellow consolidated
sand Gray gravels of glacial origin USGS
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The High Plains-Ogallala Aquifer

• Area 174,000 sq. miles
• Average Saturated Thickness 190 feet (highly
  variable, from 51 in NM to 342 in NE)
• Water Level Change, predevelopment to 2011 -14
  (highly variable, with TX (-39) and KS (-24)
  the worst)
• Effectively non-renewable

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The Problem of Legal Diversity

• Defining the Nature of the Right
• Colorado Designated Groundwater
• Nebraska, Oklahoma Correlative Rights for
  Groundwater
• Texas Rule of Capture (on steroids overlying
  surface owner has a right to the corpus)
• Wyoming, New Mexico, Idaho, Kansas, South Dakota
  integrated legal regimes, with wide variations in
  legal and hydrological results
• Interstate and Tribal Groundwater
• The Federal Role in Groundwater Adjudications