Groundwater Law Research Articles

Need for an Evolved Groundwater Justice in Rural Areas of Uttar Pradesh, India

As groundwater is the primary element of life, countries all over the world are experimenting with legal reforms. The degree to which law reforms combine justice and sustainability is a crucial question. In response to this question, the present article focuses on a case study of Uttar Pradesh, India. Our response is based on a content analysis of the Uttar Pradesh Groundwater (Management and Regulation) Act, 2019, and the Uttar Pradesh Groundwater (Management and Regulation) Rules, 2020. Three conclusions emerged from our investigation. First, the 2019 Groundwater Act and the 2020 Draft Groundwater Rules are primarily motivated by concerns about resource sustainability, particularly in areas where the water table is steadily declining. Still, neither the 2019 Groundwater Act nor the 2020 Draft Groundwater Rules propose any proactive groundwater justice measures. Second, we suggest that some locally defined basic elements are critical in supporting sustainability and – to a lesser extent – groundwater justice. These characteristics include a community’s ability to (1) recognize a crisis and show a willingness to address it; (2) establish a rule-bound community groundwater resource; (3) demonstrate leadership and a sense of community; and (4) make use of awareness, information, and knowledge. Our third conclusion is that there is a need for community practices and state-led groundwater law to co-evolve; this co-evolution has the potential to create groundwater arrangements that support both groundwater justice and sustainability.

Revisiting groundwater law through the lenses of earth system law and rights of nature

AbstractCurrent groundwater challenges have made evident that national and international groundwater law needs a thorough revision. In this article, we explore earth system law (ESL) and rights of nature (RoN) as possible approaches to rethink groundwater law. Taking inspiration from ESL scholarship, RoN literature, Indigenous worldviews, and socio‐ecological movements, we analyze law as a critical element of the human‐political‐social system, which creates regulatory institutions with the aim to provide a social order for humanity, an order that is being affected by deteriorating earth systems, including groundwater. Recognizing RoN and thinking law through the lenses of ESL involve a new understanding of what groundwater law could be and what the subject of the law could be. So far, little attention has been given to how these approaches can be used to redesign groundwater law, and what implications this could have on groundwater governance and sustainability. Therefore, this article explores the possibility of reforming groundwater law through the lenses of ESL and RoN. It investigates which legal mechanisms are being used to recognize RoN, and what their legal and practical implications have been so far. This article aims to contribute not only to advancing the academic debate on RoN and ESL but also to share light on different ways to reform groundwater law, which includes a new understanding of sustainability and socio‐nature relations.This article is categorized under: Human Water > Rights to Water Human Water > Water Governance Science of Water > Water and Environmental Change

International Law for Transboundary Aquifers: A Challenge for Our Times

Quarrels between states sharing a transboundary aquifer (TBA) have been relatively minor in comparison with the more boisterous disputes seen in many of the world's shared river basins. Yet, transboundary groundwater can easily serve as the basis for cross-border disagreements. Twice as many TBAs and shared groundwater bodies have been identified globally as compared to transboundary rivers and lakes, and the volume of accessible groundwater exceeds all surface waters by a factor of one hundred. Yet, the number of treaties in force for TBAs is miniscule in comparison with those for transboundary rivers and lakes. Moreover, dozens of nations exploit groundwater from a TBA, often unilaterally and without knowing the cross-border implications, or even that the aquifer is transboundary. The lack of prioritization of groundwater in international practice and law, coupled with the reality that groundwater is “out of sight,” and thereby “out of mind,” has relegated shared aquifers as the neglected stepchildren of international water law. But, with many of the world's nations experiencing growing water scarcity and stress, this situation undoubtedly will change. This essay highlights the growing pains of international groundwater law and the challenges for its identification and articulation. Specific hydrogeologic characteristics of various TBAs are presented and, where relevant, placed in the context of water scarcity and security and recognized international legal norms.

Critical perspectives on South Africa’s groundwater law: established practice and the novel concept of public trusteeship

South Africa is a semi-arid country that increasingly relies on groundwater as a freshwater source for both socio-economic and environmental systems. Groundwater resources are, however, limited and fragile due to factors such as climate change, exploitation and pollution. This renders the groundwater regulatory framework essential. Yet in South Africa, groundwater governance is not strongly emphasised in the novel regulatory framework instated by the National Water Act 38 of 1998 (the NWA). Naturally, uncertainties and challenges arise as to, inter alia, the appropriate allocation and effective protection of the country’s groundwater resources. This paper traces established groundwater governance practices and critically reflects on how the concept of public trusteeship, as introduced by the NWA, changes and informs the country’s groundwater governance practices.

The Cut and Dry of Texas Groundwater Law: Unconstitutional Takings of Produced Water from Oil and Gas Wells as a Result of House Bill 3246

With legislative action that went into effect on September 1, 2019, the state of Texas affected a taking of groundwater against surface owners. House Bill 3246 gives title of produced water, as part of fluid oil and gas waste, to whoever takes possession of it to put it to a beneficial use. Produced water is water that is trapped deep in rock with hydrocarbons. It comes to the surface with oil and gas production, and produced water is best described as water that has solubles, often salts, dissolved in it. The Texas Water Code defines groundwater as “water percolating below the surface.” If produced water were to fall within this definition, the owner of it would have a vested property right in it. In the Edwards Aquifer Authority v. Day and Edwards Aquifer Authority v. Bragg decisions, the Texas Supreme Court established the ability for groundwater to be taken, as defined by the Fifth Amendment of the United States Constitution. Following this logic, if produced water is groundwater, the state cannot pass legislation that transfers its ownership to an oil and gas producer without paying a surface owner for the water without affecting a taking. This article posits that produced water can be defined as percolating, because of this fact, House Bill 3246 acts as an unconstitutional taking of groundwater from the surface estate. The bill is an unconstitutional taking because it violates the restrictions that the Texas Constitution puts on the public use requirement of a taking, and even if it were to not violate this requirement, just compensation would still have to be paid. In addition to the offenses against the surface estate, this article presents an argument that, in the event that produced water is found to be in the mineral estate, House Bill 3246 still affects a taking, this time against the mineral estate owner, because the bill gives fee simple absolute ownership of a substance in the mineral estate that a mineral lessee would otherwise have fee simple determinable ownership of. The situation created by House Bill 3246 needs to be addressed by the legislature with the offending section of the Natural Resources Code changed so that the interests of surface owners in all groundwater beneath their property are recognized. Additionally, oil and gas producers need to approach surface owners and enter into agreements to purchase produced water brought to the surface incidental to oil and gas production. The value of produced water is increasing, what was once a substance with no value that had to be disposed of now has applications in other oil and gas recovery operations and increasingly in other industries as well. In a state with the water deficits that Texas regularly sees, all water has to be respected as the valuable resource that it is. With the legislation only being recently passed, the both the novelty and urgency of this topic are great. This article addresses a critically important aspect of Texas property law and constitutional law is often overlooked because of the insistence that produced water is not percolating.

Water to Wind: The Path Texas Groundwater Law Provides to Sever the Wind Estate and Prioritize Mutually Dominant Estates

The Texas Legislature should sever the wind estate. The severance of wind estates is a current and common practice within Texas; however, neither the Texas Judiciary nor Texas Legislature has spoken regarding the validity of severed wind estates. The Texas Supreme Court aligned the ownership of groundwater to the ownership of minerals in 2012 and again in 2016. The Court’s decisions regarding groundwater supported a uniform approach to determining the property interests of financially valuable and fugitive natural resources. This method of determining ownership of groundwater differs from the approaches other states have utilized to determine ownership of financially valuable and fugitive natural resources. The Court also supported the historic approach Texas has taken to promote private property rights and the right to contract concerning one’s property when upholding the validity of severed groundwater estates. The ownership theories the Court applied to groundwater indicates how the Texas Legislature, or Texas Judiciary, should act regarding the ownership of wind. This Article analyzes property rights in the wind above the surface estate and aligns the wind estate with groundwater and mineral estates, supporting the position wind estates should be severable property estates. Texas leads the nation in the production and development of wind energy, and due to this robust industry in Texas there are millions of dollars at stake in wind development and lease payments to landowners. Though Texas leads the nation in production and development of wind energy, neither the Texas Supreme Court nor Texas Legislature has provided any clarity to the property interests at stake in wind. The two cases that have addressed the severance of wind estates have analogized the wind estate to the mineral estate or groundwater estate. The validity of wind estates needs to be addressed in Texas due to the financial gains, or losses, affecting the Texas landowner if legislation is passed validating, or invalidating, the severance of wind. If legislation is passed validating the wind estate, or legislation is passed similar to legislation passed by other states proactively invalidating wind severance while honoring the previously severed wind estate, wind estates will exist. The determination of the priority of the wind estate compared to the mineral, groundwater, and surface estates will have to be determined. The application and understanding of common law doctrines such as the dominant estate doctrine, first in time; first in right doctrine, and the accommodation doctrine provide clarity to the priority of the respective estates. The Texas Supreme Court holdings in Coyote Lake Ranch v. City of Lubbock, as well as Edwards Aquifer Authority v. Day, applied the jurisprudence previously applied to mineral estates to groundwater estates. This Article analogizes the principles recently applied to groundwater estates and how they can, and should, be applied to the wind estate. This Article also explores the relationship between the mineral, groundwater, and wind estate as mutually dominant estates and the respective relationships with the surface estate. Currently, there is no academic article providing an analysis of how Coyote Lake Ranch and Day provide a foundation to determine the ownership of the wind above one’s property. Thus far, only a few scholarly articles address the severance of wind estates in Texas. The analyzation and determination of priority of wind, mineral, and groundwater estates as mutually dominant estates have not been the focus of any scholarly article thus far. My Article fills this substantial gap in the scholarly literature and provides readers with legal and practical reasons the wind estate should be considered a severable property interest that is equal in dignity to the mineral and groundwater estates.

Groundwater governance in the Anthropocene: a close look at Costa Rica

AbstractThe Anthropocene is an era in which humans have become the primary driver of planetary systems, not least the global hydrological cycle. This is posing significant challenges for managing the globe's water resources, and is catalyzing a shift in the focus of water law, governance and policy research. One important feature of this shift is a burgeoning focus on groundwater resources and their exploitation, particularly in developing countries. As surface water succumbs to climate pressures, groundwater use has increased rapidly as a source of food production and economic development. A fundamental question for modern water law and governance research is: what are the key challenges and opportunities for effective design and implementation of groundwater law to achieve sustainable and inclusive development. This article provides insights into this question through an empirical examination of Costa Rica. Drawing on an empirical analysis of 40 semi-structured interviews with public and private stakeholders in Costa Rica, the findings identify the following challenges and opportunities for groundwater governance: (i) recognition of water as a public good and clear ownership; (ii) insufficient definition of groundwater and embedding within the concepts of sustainable and inclusive development and participation; (iii) inadequate organization and toolbox, including implementation.

California’s Groundwater Regime: The Cadiz Case

Recent California legislation has promised solutions to longstanding problems in groundwater management through an emphasis on management of groundwater itself, rather than on the rights of overlying property owners. In this short communication, I argue that the promises of scientific management relies on property law and jurisdiction and therefore that scientific claims about the water itself are less important than private property claims in the case of a Cadiz Inc.’s proposed groundwater extraction project in Southeastern California. While private property in land insulates Cadiz Inc. (Los Angeles, CA, USA) from political contestation, opposition to the project has increasingly focused on the right to transport and transfer water through lands not held by Cadiz Inc. This legal strategy points to how California groundwater law is still fundamentally ruled by private property in land, which shifts the grounds of environmental politics from extraction itself to the transport of extracted materials. This case serves as a good example of the intersection of political ecology and legal geography.

Coyote Lake Ranch v. City of Lubbock: a ranch, a city and the battle over surface use

In a time when the competition for water resources is increasing, water law and policy for groundwater is evolving, bringing to the fore the conflict between surface use and groundwater. Unlike the oil and gas context where the mineral estate is dominant, the superiority of severed groundwater to the surface estate has remained uncertain. The recent Texas Supreme Court case, Coyote Lake Ranch v. City of Lubbock, addressed this question, holding that the accommodation doctrine (long applied to mineral estates) applied to groundwater interests in that case. On its face, the case was a dispute between a Texas city and a landowner over the use and damage to surface property caused by groundwater development. The implications of the Supreme Court’s holding, however, run deep and are significant in this time of growing water scarcity. The Coyote Lake Ranch case signals a continued push toward unifying the law governing mineral and groundwater law and emphasizes the need for the courts and the Texas Legislature to be proactive in balancing the interests and rights of all parties. Citation: Bradbury JD, Smith CC, Ory A. 2017. Coyote Lake Ranch v. City of Lubbock: a ranch, a city and the battle over surface use. Texas Water Journal. 8(1):87-96. Available from: https://doi.org/10.21423/twj.v8i1.7054.

Global climate change and global groundwater law: their independent and pluralistic evolution and potential challenges

ABSTRACTAlthough the climate and groundwater systems have close links, the international climate change regime and global groundwater laws have developed independently, despite being negotiated within a few years of each other. Hence this article addresses the question: Do global legal instruments on climate change and groundwater consider the geophysical links between the two systems, and how can their legal frameworks be improved? It argues that there are six geophysical links between groundwater and climate change which are presently inadequately accounted for in the legal regimes and there are four key contradictions between the two legal systems. It makes four recommendations to enhance the linkages between the systems.

Climate change considerations under international groundwater law

ABSTRACTMost of the earth’s groundwater is in transboundary aquifers. This vital water resource will certainly be affected by climate change. This article reviews the global climate change framework to investigate how it considers water, and groundwater in particular. It then considers the international legal regime applicable to groundwater resources to explore how it deals with climate change and to what extent it is compatible with the UNFCCC framework. It concludes with identifying the limits and possibilities of the groundwater regime in addressing climate change.

Groundwater law, abstraction, and responding to climate change: assessing recent law reforms in British Columbia and England

ABSTRACTIn 2014, British Columbia enacted the Water Sustainability Act, a comprehensive overhaul of its groundwater and surface water regimes. Meanwhile, in England more piecemeal changes have been made to groundwater laws and policies. Through developing a framework from groundwater governance and climate change adaptation literature this article analyzes the effectiveness of these reforms, which have been carried out through different methods and from different starting points. The article goes on to consider how new processes and technologies, such as hydraulic fracturing (fracking), bring fresh challenges in aligning progress in groundwater law reforms with the wider policy framework.

The Shape of Groundwater Law: California's New Sustainability Act

Author(s): DiMento, Joseph F. C | Abstract: The paper examines the legal and administrative history of the Sustainable Groundwater Act and assesses its potential for remedying overdraft.

The Structure of Local Groundwater Law for Sustainable Groundwater Policy in Japan

Groundwater is extremely important to all societies. It provides in many places a reliable and ample supply of water for home use, irrigation, and industry. Japanese groundwater policy consists of complex laws and rules. The law governing groundwater nationally is inadequate. The main controversy has been that a river law exists only at a national level, whereas groundwater law does not exist in the national law of Japan. When local government faces problems with groundwater, the policy makers have to solve the problem following their local rules. Each local government solves problems case by case. Local government is used to obeying local rules and old traditions. Local common law becomes the local groundwater rule. Groundwater policy has recently been progressively promoted to an evolution of the local groundwater ordinances for sustainable groundwater conservation. This paper describes the complex legal framework of the related local groundwater policy and regulations under Japanese law. This is a bibliographic survey of Japanese groundwater laws and local groundwater ordinances. It is used to analyze the functions of local autonomy and the role of ordinances and to explain its changing functionalities of groundwater ordinances. Local ordinances are known as the strongest conservation legal network for sustainable groundwater policy in Japan. This is the first paper to try to explain the basic principles of the Japanese groundwater law for an international journal.

Revamping the Groundwater Legal Regime in India: Towards Ensuring Equity and Sustainability

The evolution of a separate groundwater law in India is a relatively new development. This development marks a shift from the dated common law rule that recognises the uncontrolled right of landowners over groundwater, which perpetuated gross inequity in accessing groundwater by restricting access only to landowners. In this context, framing of new groundwater laws is seen as a key step towards addressing the aggravating problems of depletion and contamination of groundwater along with eliminating inequity in accessing groundwater. Access to groundwater is also directly related to the realisation of the right to water because groundwater is the most important source for drinking and other domestic purposes. Therefore, a legal framework ensuring sustainable use of, and equitable access to, groundwater will have tremendous impact and influence on the effective realisation of the right to water in the Indian context. In this background, this article examines the capacity of the existing and evolving groundwater law in India to ensure equity, sustainability and realisation of the right to water. This article also highlights the gaps in the existing legal framework in this regard and suggests basic principles, norms and approaches that should form the underlying elements of the groundwater legal regime to make it capable of ensuring sustainability, equity and human rights

Down the Drain: A Comparison of the Impact on Biodiversity of Groundwater Law in Texas and Rio Grande do Sul

Down the Drain: A Comparison of the Impact on Biodiversity of Groundwater Law in Texas and Rio Grande do Sul

The Endangered Springflow Act: How the Endangered Species Act Influences Groundwater Law and Protects Springflow in Texas

Many springs in Texas are in danger of drying up as two contradictory forces – drought and development – collide. As groundwater from an aquifer is pumped for irrigation, municipal, or industrial use, the water level in the aquifer is lowered and the result is decreased flow from springs at the surface. The lack of recharge to the aquifer caused by drought exacerbates the decline in groundwater levels and diminished springflow. Reductions in springflow are problematic because springs sustain numerous creeks and rivers, especially during drought when surface runoff from rainfall is low. As springflow decreases, so does the flow of surface water, degrading aquatic habitats, threatening consumptive uses of water, interfering with recreational activities, and harming water quality. While the Texas State Water Plan indicates that water management strategies will focus on surface water in the future, reliance on groundwater supplies, including brackish sources, to support population growth, agriculture, and a booming oil and gas industry will continue.When an endangered species is present in a spring, can the Endangered Species Act influence groundwater management and protect springflow? What regulatory tools can a groundwater conservation district utilize to protect springflow to ensure the long-term survival of rare species? What potential legal vulnerabilities do groundwater districts face if they fail to do so? What options are available under the ESA for the districts to obtain authorization for unavoidable harm to the species? In this paper, we explore the significant and developing relationship between groundwater management and endangered species protection.

Texas groundwater rights and immunities: from East to Day and beyond

For well over a century, the debate has raged over what interest, if any, landowners possess in the groundwater beneath their property, as well as what degree of tortious immunity a neighboring landowner enjoys for draining adjoining groundwater. After the Texas Supreme Court’s 2012 decision in Edwards Aquifer Authority v. Day, and the Texas Legislature’s 2011 amendments to the Texas Water Code, these debates appear to have been finally settled—for now! This article traces the jurisprudential development of Texas groundwater law, from its earliest origins in ancient Rome through to the most influential and substantive decisions of the Texas Supreme Court and legislation from the Texas Legislature. It also examines what cases are on the horizon that may yet affect Texas groundwater law in the coming years. Citation: Drummond DO. 2014. Texas groundwater rights and immunities: from East to Day and beyond. Texas Water Journal. 5(1):59-94. Available from: https://doi.org/10.21423/twj.v5i1.7013.

Groundwater Law In India: Towards a Framework Ensuring Equitable Access and Aquifer Protection

Groundwater law in India gives individual landowners overwhelming control over groundwater. This is inappropriate in a context where groundwater is now the main source of water for the realisation of the human right to water. This also fails to provides the basis for effective protection of groundwater at aquifer level. Increasing dependence on groundwater for all the main water uses has made the need for reforms of the legal framework increasingly acute. This article argues that groundwater law must be reconceived around a new set of principles that recognise the common nature of groundwater, its importance in realising the human right to water, the need for a governance framework starting at the local level and the need for a strong aquifer protection regime. The proposed new framework is then examined in the context of the Groundwater Model Bill, 2011 that reflects in large part this new framework.

지하수오염방지 시설기준의 개선에 관한 연구:지하수오염관정에의 팩커그라우팅 적용사례

국내 현행 지하수법에서는 오염방지 시설에 관한 개략적인 설치규정만이 설정되어 있어서 대수층의 특성을 고려하지 않은 일률적인 오염방지 시설 기준이므로 지질에 따라 다양하게 발달하는 우리나라의 지하수자원을 효과적으로 보호해 주지 못한다. 최근에는 지하수오염방지에 중요한 기술과 장치로서 패커개발이 점차 주목을 받고 있다. 본 연구에서는 경북 안동시 서후면, 충남 연기군의 오염된 지하수공에 대하여 하부지하수오염방지시설로서 팩커의 적합성을 검토한 결과, 그 효과는 우수한 것으로 나타났다. 연구대상지인 경북 안동시 서후면 창풍리의 경우 팩커를 시공한 결과 탁도는 94%, 연기군 남면 눌왕리의 경우 질산성 질소는 60% 감소효과를 나타내었으며, 이로 인해 모든 수질검사항목에서 적합수질을 보였다. 지하수오염방지를 위해서는 정확한 관정카메라 촬영과 오염원 모니터링 분석을 실시하고, 이에 근거하여 지질특성, 풍화대심도, 파쇄대 발달, 대수층의 수리경사, 오염물의 이동경로를 파악한 후, 통합적으로 지하수오염 가능성을 평가하고, 이를 통하여 적절한 그라우팅과 케이싱 작업이 이루어져야 한다. 유용한 대수층 구간을 확보하여 오염물을 차단하는 그라우팅, 팩커장치, 케이싱은 지하수의 활용과 오염방지에 중요한 역할을 할 것으로 기대된다. Because the present groundwater law broadly regulates a simple and impractical guideline ignoring aquifer characters and geology, general purpose facilities for protection of groundwater contamination is still considered unsatisfactory to ensure groundwater resources. In recent, there have been growing attempts in the packer development as crucial techniques and devices for groundwater protection. This study investigated the application of packer grouting techniques to contaminated groundwaters of two well sites in the Andong and Yeongi areas, both of which revealed a satisfactory effect with improved water quality: 94% decrease in turbidity at the Andong area and 60% decrease in <TEX>$NO_3$</TEX>-N, respectively. Based on aquifer characters including geology, weathering depth, fracture pattern, hydraulic gradient, and the flow path of contaminants, the integrated properties of groundwater contamination should be evaluated and treated with the help of accurate analyses such as bore hole imaging and monitoring data. Packer grouting and casing on well to ensure the useful aquifer free of contaminant are expected to play important role in inhibiting the inflow of contaminants when adequately applied. Therefore it is concluded that these can serve as reliable tools in remediation and protection of contaminated groundwater as well as efficient utilization of groundwater.