Groundwater Law Research Articles

A New Day? Two Interpretations of the Texas Supreme Court’s Ruling in Edwards Aquifer Authority v. Day and McDaniel

Editors’ Note: Many in Texas waited patiently for the Texas Supreme Court decision on Edwards Aquifer Authority v. Day and McDaniel, arguably the most important decision on Texas groundwater law in a generation. Regardless of which way the decision went, it undoubtedly would have a big impact on the management of groundwater resources in the state. We were not disappointed. The decision is complicated and, in places, seemingly contradictory. By opening groundwater management to regulatory takings, a door to another complicated area of law has been opened. Although the Day case answers some questions, others remain unanswered. And there are strong opinions on what Day means and doesn’t mean. While the Texas Supreme Court considered the Day case, Russ Johnson and Greg Ellis regaled audiences at multiple venues on their views on the case and what the court would or should do. Johnson’s arguments leaned toward the landowner perspective while Ellis’s arguments leaned toward the groundwater conservation district perspective. With the Day case decided, we thought it would be informative to ask Johnson and Ellis what they thought Day meant. Given the topic and nature of the contributions, only the editorial board reviewed the papers before accepting them for publication. As expected, the papers are interesting and informative—and help set the stage for the path forward. Citation: Johsnon RS, Ellis GM. 2013. A New Day? Two interpretations of the Texas Supreme Court’s ruling in Edwards Aquifer Authority v. Day and McDaniel. Texas Water Journal. 4(1):35-54. Available from: https://doi.org/10.21423/twj.v4i1.6990.

음용 및 비음용 지하수 우선관리대상 항목 선정기법: CROWN (Chemical Ranking of Groundwater PollutaNts)

The Korean groundwater law regulates 20 groundwater contamination parameters, including 14 specific harmful substances. Expanding the number of groundwater quality standards are needed to cope with recent groundwater quality deterioration due to the use of various chemicals. Chemical ranking and scoring system (CRS) is a scientific tool to sort priority chemicals by considering exposure and toxicity potentials. In this study, we developed a CRS for scoring and ranking of possible groundwater pollutants and screened priority substances to be later considered in the Korean standard expansion. Chemical Ranking Of groundWater pollutaNts (CROWN) incorporates important parameters consisting of exposure potential, human and water ecotoxicity, interests, and certainty. Furthermore, CROWN additionally evaluated existence of other media standards to consider impacts by contamination of other media. The 197 substances that were common to 9 countries were selected first. CROWN evaluated and ranked each chemical, and finally suggested priority substances. Suggested priority substances were classified into two groups according to the groundwater use purposes: drinking and non-drinking. The priority substances were further classified into <TEX>$1^{st}$</TEX> and <TEX>$2^{nd}$</TEX> group priorities. The <TEX>$1^{st}$</TEX> group consists of 75 substances, including the all the Korean groundwater standard parameters. CROWN will be used in selecting groundwater pollutants for possible inclusion in the Korean standard expansion.

Simulated effects of reduced spring flow from the Edwards Aquifer on population size of the fountain darter (Etheostoma fonticola)

The Edwards Aquifer in south-central Texas, U.S.A. is recognized worldwide for its aquatic species of flora and fauna, many of which are endangered or threatened, and also is the sole water source supporting the industrial, agricultural, municipal, and recreational needs of nearly 2 million people. Because it is generally the first species affected by low spring flows, the endangered fountain darter (Etheostoma fonticola) has been a focal point for controversies involving the endangered species act, state of Texas groundwater law, and private property rights. We developed an age- and sex-structured population model for the fountain darter, calibrated the model within the constraints of published parameter estimates such that populations simulated under historical spring flows resembled those documented in the field from 1973 to 2007, and used the model to project population dynamics under scenarios of reduced spring flows that could occur as a result of a drought or increased urban water demands. Our simulations suggested that even extending the low spring flows associated with the record drought of 2011 for three consecutive years would have no noticeable effect on population dynamics, and that minimum annual population levels were relatively unaffected until flows were reduced below 2.8m3/s, with minimum population levels falling sharply when flows were reduced beyond about 1.68m3/s. We view our model as a base model representing the impacts of changes in spring flow on the fountain darter which could be developed further to represent the impacts not only of changes in spring flow but also changes in water quality resulting from increases in the runoff of contaminants associated with continued urban development.

Water Conflicts and the Role of International Law in Their Prevention

Deadly disputes over access to boreholes and wells are not uncommon in drought stricken or water scarce regions. Where livelihoods are at stake, human despair can become a cause of violent conflict. The case of Darfur has demonstrated that conflicts that emanate from situations of severe shortages of water do not always remain within local or national boundaries, but can spread across borders. This paper analyzes the contribution of international water law (IWL) to the prevention of conflicts caused at least in part by water scarcity. In line with the topic of the conference, the focus is on recent developments in international groundwater law; particular attention is accorded to recent improvements of legal mechanisms promoting conflict prevention that have been introduced by the 2008 Draft Articles on the Law of Transboundary Aquifers. Where water scarcity constitutes a potential cause for inter-state conflict, the principle of equitable and reasonable utilization of transboundary water resources and associated cooperation obligations can serve as useful means to anticipate conflicts. The 2008 Draft Articles have developed the traditional conception of this principle a step further and have recast it into an increasingly forward-looking principle by putting additional emphasis on future uses and intergenerational equity. The paper argues that these small alterations as well as the special weight the Draft Articles accord to vital human water needs in determining equitable and reasonable utilization mark an important contribution to the preventive qualities of IWL. In contrast to the 1997 UN Watercourses Convention, the provisions of the Draft Articles establish legal mechanisms by which the emergence of situations that could lead to conflict is already considered before disputes between users occur. It is argued that such techniques of shaping normative content should be kept in mind in order to anticipate future conflicts when negotiating new groundwater agreements.

Transboundary groundwater law in Europe: a look at an evolving multi-level regime

Transboundary groundwater resources in Europe are increasingly governed by a multi-level regime composed of national, supranational and international law. The article provides an overview of essential features of the 2000 Water Framework Directive and the 2006 Groundwater Directive of the European Union. It identifies their pivotal role not only regarding the domestic groundwater law of European Union member states, but also with respect to international law pertaining to transboundary groundwater resources in Europe.

Groundwater legislation in Turkey: problems of conception and application

The uneven distribution of water resources, a growing population, urbanization and global climate change require new approaches for groundwater management in Turkey. “Safe yield” should yield to broader concepts such as “sustainability”. Groundwater management needs to consider future needs of the people and all ecosystems in accordance with basin development models. Groundwater law needs to be expanded beyond quantity to address quality concerns. A new institutional framework should be established and groundwater regulation should reflect new approaches and ideas, in particular to address problems of application.

Comparison of Aquifer Sustainability Under Groundwater Administrations in Oklahoma and Texas1

Mittelstet, Aaron R., Michael D. Smolen, Garey A. Fox, and Damian C. Adams, 2011. Comparison of Aquifer Sustainability Under Groundwater Administrations in Oklahoma and Texas. Journal of the American Water Resources Association (JAWRA) 1-8. DOI: 10.1111/j.1752-1688.2011.00524.x Abstract: We compared two approaches to administration of groundwater law on a hydrologic model of the North Canadian River, an alluvial aquifer in northwestern Oklahoma. Oklahoma limits pumping rates to retain 50% aquifer saturated thickness after 20 years of groundwater use. The Texas Panhandle Groundwater Conservation District’s (GCD) rules limit pumping to a rate that consumes no more than 50% of saturated thickness in 50 years, with reevaluation and readjustment of permits every 5 years. Using a hydrologic model (MODFLOW), we simulated river-groundwater interaction and aquifer dynamics under increasing levels of “development” (i.e., increasing groundwater withdrawals). Oklahoma’s approach initially would limit groundwater extraction more than the GCD approach, but the GCD approach would be more protective in the long run. Under Oklahoma rules more than half of aquifer storage would be depleted when development reaches 65%. Reevaluation of permits under the Texas Panhandle GCD approach would severely limit pumping as the 50% level is approached. Both Oklahoma and Texas Panhandle GCD approaches would deplete alluvial base flow at approximately 10% development. Results suggest periodic review of permits could protect aquifer storage and river base flow. Modeling total aquifer storage is more sensitive to recharge rate and aquifer hydraulic conductivity than to specific yield, while river leakage is most sensitive to aquifer hydraulic conductivity followed by specific yield.

Past, Present and Future of the International Law of Transboundary Aquifers

AbstractThe article discusses the development of international groundwater law from the first codification efforts of modern water law until present and raises relevant issues for the way forward. It first traces international groundwater law from the 1960s until the end of the last century. It then reviews the growing attention groundwater has received during the last decade and third discusses the status quo. It places particular emphasis on the 2008 Draft Articles on the Law of Transboundary Aquifers adopted by the International Law Commission and the legal arrangements made for five of the 273 transboundary aquifers. It concludes with thoughts on the way forward in this important and understudied area of international law.

The Role and Relevance of the Draft Articles on the Law of Transboundary Aquifers in the European Context

AbstractIn 2008, the UN International Law Commission adopted a set of 19 articles as a contribution to the codification and development of international groundwater law, and submitted them to the UN General Assembly. In view of the ILC's report, UNGA Resolution 63/124 takes note of the Draft Articles; commends them to the attention of governments; encourages States to apply and adjust the Draft Articles as a basis to negotiate specific aquifer agreements; and decides provisionally to examine the question of the final form that might be given to those articles at that body's 66 th Session. The Draft Articles offer an important basis for the progressive development of the law governing transboundary aquifers, in particular by acknowledging the complementary relationship between universal and regional or aquifer-specific legal instruments. In this context, the paper will assess the potential role and relevance of the Draft Articles' text, as it now stands, to guide European States in the sound management of the aquifers shared in the region. It will do so by comparing and evaluating the relationship between the Draft Articles and relevant European legal instruments, with particular focus on the issues of sustainability, planned measures, monitoring, emergencies, and the geographic scope of freshwater agreements. The analysis will show that, while these global and regional instruments can be mutually supportive, some important differences exist in the extent and content of the obligations under each of them.

地下水管理における政府の役割―バンコクの地盤沈下問題を事例に―

Land subsidence is a common intermittent problem in Asian Megacities, such as Tokyo, Osaka and Bangkok, of different economic development stages. The purpose of this paper is to justify government intervention and clarify policy options against land subsidence problem with Bangkok case. First of all, government intervention is necessary because land subsidence problem can be regarded as an example of collective action problems that are hard to be solved by voluntary cooperation of stakeholders. Especially in case of Bangkok, such cooperation was prevented due to factors including group size, subsidence rate and high cost of waterworks construction. The roles government played in mitigating land subsidence problem in Bangkok can be classified as follows; (1)enacting groundwater law that requires groundwater users to get a pumping permission from government, (2)establishing areas, based on monitoring data, where groundwater pumping is strictly regulated, (3)introducing groundwater fee system to give people disincentive to use groundwater, (4)construction of waterworks. In sum, land subsidence in Bangkok was mitigated by policies that fostered conversion of water supply from groundwater to surface water, which was made possible by not only regulating groundwater pumping but also providing

Water conservation policy alternatives for the Ogallala Aquifer in Texas

Texas groundwater law is based on the rule of capture; however, recent legislation provides groundwater conservation districts with the authority to implement groundwater use rules to manage aquifers. The objective of this study was to develop optimization models to analyze effects of groundwater policies on the Ogallala Aquifer and evaluate economic impacts on the Southern High Plains of Texas. The results of this study indicate that a policy that restricts the quantity of groundwater pumped conserved more water over the 50-year time horizon than implementation of a water use fee, but at a higher cost to local economies.

Foreword: Transboundary Ground Water

GroundwaterVolume 43, Issue 5 p. 646-650 Foreword: Transboundary Ground Water Michael E. Campana, Michael E. Campana Director, Water Resources Program, and Albert and Mary Jane Black Professor of Hydrogeology, Department of Earth and Planetary Sciences, University of New Mexico, MSC05 3110, 1 University of New Mexico, Albuquerque, NM 87131-0001; 1-505-277-5249; fax 1-505-277-5226; aquadoc@unm.eduSearch for more papers by this author Michael E. Campana, Michael E. Campana Director, Water Resources Program, and Albert and Mary Jane Black Professor of Hydrogeology, Department of Earth and Planetary Sciences, University of New Mexico, MSC05 3110, 1 University of New Mexico, Albuquerque, NM 87131-0001; 1-505-277-5249; fax 1-505-277-5226; aquadoc@unm.eduSearch for more papers by this author First published: 05 September 2005 https://doi.org/10.1111/j.1745-6584.2005.00112.xCitations: 8 Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Citing Literature Volume43, Issue5Special Issue: Transboundary Ground WaterSeptember 2005Pages 646-650 RelatedInformation

International Groundwater Law: Towards Closing the Gaps?

International Groundwater Law: Towards Closing the Gaps? Get access Kerstin Mechlem Kerstin Mechlem Search for other works by this author on: Oxford Academic Google Scholar Yearbook of International Environmental Law, Volume 14, Issue 1, 2003, Pages 47–80, https://doi.org/10.1093/yiel/14.1.47 Published: 01 December 2004

Cadillac Desert revisited: property rights, public policy, and water-resource depletion

To alleviate Arizona's dependence on groundwater, the federal government subsidized construction of the Central Arizona Project (CAP) to import water from the Colorado River. In exchange for the subsidy, Arizona reformed its groundwater law to eliminate common-property pumping and to ban groundwater mining after the year 2025. We build a model of water resource development in which imported water is a capacity constrained backstop. The model is applied to quantify the welfare effects of alternative CAP construction dates and Arizona groundwater laws. We reach two general conclusions. First, CAP was completed 86 years too early, in 1987, at a deadweight loss of $2.612 billion. Ironically, construction in 1987 yielded lower surplus than never constructing CAP. Second, the political exchange of reform for subsidy introduced a greater loss ($2.612 billion) than it corrected ($0.810 billion). The exchange was worse than doing nothing at all.

Origins of Common‐Law Restrictions on Water Transfers: Groundwater Law in Nineteenth‐Century California

Abstract Despite the fact that court‐mandated restrictions on voluntary transfers of water are common throughout the western United States, we currently lack a good economic understanding of the historical origins of many of those restrictions. In nineteenth‐century California, groundwater law evolved from an initial regime of virtually no legal restrictions on transfers to one of significant restrictions after the turn of the century. This doctrinal shift was given partial impetus by increasing scientific understanding of groundwater flows, which was reflected in increasingly sophisticated court rulings. However, it was a dramatic deterioration in groundwater conditions in southern California around the turn of the century that triggered a significant change in the court treatment of groundwater transfers. This deterioration resulted from drought conditions and a secular expansion in irrigated agriculture during the 1890s and major technological improvements that made large‐scale groundwater pumping incr...

The Little Fish that Roared: The Endangered Species Act, State Groundwater Law, and Private Property Rights Collide over the Texas Edwards Aquifer

The Edwards Aquifer is the sole source of water for San Antonio, Texas. The Aquifer contributes surface water flow in the Guadalupe River through Comal and San Marcos Springs, both of which are home to endangered aquatic species, including the fountain darter. In 1993, a U.S. district court ruled that the Secretary of the Interior allowed takings under the Endangered Species Act (ESA) by not ensuring adequate flows from the Springs. The Texas legislature responded to a court mandated deadline to protect springflow by establishing the Edwards Aquifer Authority (EAA) to regulate groundwater withdrawals. In 1996, as a severe drought affected the region, the Texas Supreme Court overturned a state trial court ruling that EAA was unconstitutional. During a second ESA suit alleging that groundwater pumpers were causing takes of endangered species, the U.S. district court ordered the implementation of a plan to reduce pumping from the Aquifer. The court's order was later vacated and the litigation continues.

Developing A National Groundwater-Monitoring Network In Korea

Since the 1960's, the groundwater resources of Korea have been developed without a proper regulatory system for monitoring and preservation, resulting in significant source depletion, land subsidence, water contamination, and sea-water intrusion. With the activation of the “Groundwater Law” in June 1994, the government initiated a project to develop a groundwater-monitoring network to describe general groundwater quality, to define its long-term changes, and to identify major factors affecting changes in groundwater quality and yield. In selecting monitoring locations nationwide, criteria considered are 1) spatial distribution, 2) aquifer characteristics of hydrogeologic units, 3) local groundwater flow regime, 4) linkage with surface hydrology observations, 5) site accessibility, and 6) financial situations. A total of 310 sites in 78 small hydrologic basins were selected to compose the monitoring network. Installation of monitoring wells is scheduled to start in 1995 for 15 sites; the remainder are scheduled to be completed by 2001. At each site, a nest of monitoring wells was designed; shallow and deep groundwater will be monitored for water temperature, pH, EC, DO and TDS every month. Water-level fluctuations will also be measured by automatic recorders equipped with pressure transducers. As a next step, the government plans to develop a groundwater-database management system, which could be linked with surface hydrologic data.

Maybe Oil and Water Should Mix - At Least In Texas Law: An Analysis of Current Problems With Texas Ground Water Law and How Established Oil and Gas Law Could Provide Appropriate Solutions

If oil were involved, rather than water, Texas law provides the landowner absolute ownership of all the oil and gas in place beneath his land. However, the Texas' Railroad Commission requires a permit before drilling operations begin, enforces spacing rules, and sets production limits designed to maximize the overall production from the reservoir and enforce the correlative rights of neighbors. The Railroad Commission also makes and enforces rules to minimize waste and environmental damage. These rules sound like Arizona's "reasonable use" doctrine for ground water; the concepts are familiar to Texas legislators, Texas courts and to Texas property owners. Using the State's police powers in such a regulatory scheme has already been tested in Texas courts in oil and gas regulation, and a centralized state agency such as the Texas Water Commission offers advantages in cost and expertise. The application of the reasonable use doctrine to ground water appears to be the best alternative.

Third Party Effects of Groundwater Law in the United States:.

Abstract. Groundwater is an increasingly important component in the nation's total water supply. Although groundwater is one of this nation's most abundant resources, falling water tables and contamination episodes have caused localized water shortages. This has led to news media accounts describing water supply as our nation's next natural resource crisis. The problem with groundwater supply can be attributed in part to the current system of incomplete property rights. This, in combination with the common pool characteristics of underground water and other third party effects, has resulted in technical and allocative inefficiency. Groundwater hydrology, common property, contamination, and other third party effects are examined in seeking the causes of the current water crisis.

The Contemporary Setting for Water Management in the West: An Overview

The socioeconomic, legal, and institutional settings for water resources management and use in the United States have undergone dramatic changes over recent years. The resulting confusion and uncertainties in terms of the structure of water rights, the prerogatives of sovereign states, and the limitations of state‐federal interfaces provide the raison d'être for the collection of papers in this special section of Water Resources Research.This special issue is intended to serve several purposes: to inform, to provoke, and to invite. Thus many readers may find new and informative Tarlock's [this issue] overview of the evolution of groundwater law from English Common Law to laws based on notions of “reasonable use” and “sharing”; of particular importance is the readers appreciation of the changes and uncertainties in water law associated with the 1982 decision in Sporhase and in the later El Paso case. These cases, marking an end of the “immunity theory” wherein states were immune, in cases involving resources use, from challenges under the Commerce Clause, give rise to Tarlock's concern with the question, Might current conditions give rise to federal control of groundwater?