State Water Ownership and the Future of Groundwater Management
abstract. Climate change—bringing worse drought and more erratic weather—will both increase our need for groundwater and shrink the amount available. Managing dwindling groundwater reserves poses stark legal and policy challenges, which fall largely on the states. But in many states, antiquated legal regimes allow for an unrestricted race to pump aquifers dry. As a result, from the High Plains to the agricultural valleys of California, the nation’s aquifers are being depleted. Some will never replenish.
Against this backdrop, this Note addresses a question that the Supreme Court confronted—but failed to clarify—this Term: can states own the groundwater within their borders? Many states, particularly in the West, claim to own waters within their territory. Over the course of the twentieth century, the Court settled that these water-ownership claims are largely meaningless beyond states’ borders: states cannot rely on these claims to thwart federal supremacy or prevail in water contests with other states or the federal government. However, many scholars, courts, and litigants go one step further. They conclude that, in any context, state water-ownership claims cannot mean that the state has a proprietary ownership of its water. Instead, they argue, “ownership” is merely a fictive shorthand for the state’s authority to regulate a resource that no one really owns.
This Note disagrees. Clarifying a perennially muddied question of water law, it shows why, for state-law purposes, states can own their share of groundwater. More importantly, it demonstrates how denying that fact could imperil sound groundwater management when we need it most.
author. Yale Law School, J.D. expected 2022. I am particularly thankful to Claire Priest for her enthusiastic supervision of the paper that grew into this Note and to Carol Rose for helping me refine and enliven it. I am also deeply grateful for the incredibly generous assistance I received from professors at other schools: Dave Owen and Michael Pappas helped me develop my inchoate ideas and provided extensive guidance on multiple drafts, and Burke Griggs provided careful feedback and encouragement at later stages. For reviewing drafts and/or having conversations that are woven into this Note, I am further indebted to Gregory Ablavsky, James Campbell, Alison Gocke, Phil Kaplan, John Leshy, David Schleicher, David Schorr, Barton Thompson, Jr., and Gerald Torres; Brad Roberts and Bill Sherman at the Washington State Attorney General’s Office; and members of the attorneys general offices in California, Colorado, and Oregon. At the Yale Law Journal, I thank the first-year editors for their diligent editing; Kayla Crowell, Thaddeus Talbot, Joe Linfield, and Rachel Sommers for their perceptive feedback; Josh Altman and Sammy Bensinger for shepherding this Note to completion; and most of all Max Jesse Goldberg, whose keen insights and wholehearted engagement with this Note leavened it significantly. This deep bench helped me avoid a number of errors and omissions; any that remain are my own. This Note is dedicated to my wife.
Introduction
“Whence comes this ventriloquism which maketh the constitution say that which it sayeth not? The constitutional provision . . . is made to mean only that water can not be owned by any one because it can not stand still!”1
Consider three recent scenes from the drought gripping the American West.2Over the past decade and a half, industrial farming operations have bought up tens of thousands of acres in the Arizona desert for a simple reason: to pump up as much groundwater as they can—and then leave.3 No law will stop them from sucking the aquifers dry. While no state west of the Hundredth Meridian is more reliant on groundwater,4 Arizona allows users in these regions to pump as much as they can put to “reasonable use,” which includes farming.5 Lured by the lack of regulation and long growing season, Saudi and Emirati dairy companies have turned huge swaths of desert green, raising hay to feed cows back in the Gulf.6 Pecan and pistachio conglomerates have planted tens of thousands of acres of nut orchards.7 In regions that follow the “law of the largest pump,” these companies brought the biggest.8 Fearing the aquifers’ impending depletion, typically regulation-averse farmers and politicians have sought increased oversight, to no avail.9 Under the continued strain of climate change, Arizona might yet change course by restricting groundwater pumping, or even revamping the legal regime that governs groundwater property rights. If it did, could the dairy and nut agribusinesses claim that Arizona has effected a taking and so must compensate them for the value of their lost water?
For years in eastern Montana, a Louisiana company allegedly dumped toxic waste generated by oil and fracking operations in the Bakken.10 During the oil boom at the time, operations in North Dakota alone produced millions of tons of chemical- and oil-saturated earthen waste, and an untold amount of radioactive material.11 The Louisiana company dumped the waste near homes, an area with a particularly high water table.12 Montana sued the company, seeking heavy fines and demanding it pay for cleanup.13 In turn, the company’s insurers went to court to avoid having to cover these costs.14 If, in a situation like this,15 the company were found to have polluted groundwater in the area, would its liability insurance policy cover the loss?
And last summer, as California’s agricultural valleys buckled under drought, water thieves ran rampant.16 They sucked water from whatever source would yield it—including groundwater wells.17 In response, law enforcement tried to use drones and satellite imagery to track trucks carrying conspicuous water tanks in their beds.18 It was a losing battle. Even as farmers obeyed state orders to cut back, they reported that illegal overpumping of groundwater was “lowering production in their wells.”19 Water theft of this kind has been reported everywhere from Colorado to eastern Washington.20 Perhaps officials in these states will want to rely on their states’ criminal codes to prosecute this for what it is: theft. Could they?
In each of these scenarios, this Note contends that the question of whether states can own their groundwater is both important and overlooked. In response to this perennially muddied legal question, this Note argues for a crystal-clear doctrine of qualified state ownership.21 The stakes of this inquiry are high: if states do not own their groundwater, private takings claims would be more likely to succeed, and states would be more hesitant to restrict pumping;22 insurance companies would have to pay fewer claims;23 and states would be unable to prosecute groundwater theft under their larceny statutes.24
Groundwater is poised to become even more important. In the coming decades, the United States—especially its arid West25—stands to become hotter, drier, and more populous.26 These changes, driven in part by climate change, will continue to strain the country’s already stressed water resources.27 Continuing a trend that has intensified since the mid-twentieth century, the country will have to go underground to satisfy its water needs.28
As climate change increases our reliance on groundwater, it will reduce the amount available. Hotter temperatures deprive aquifers of the snowpack they need to recharge, and rising seas threaten to poison coastal groundwater with salt.29 Storms and wildfires leave contaminated wells in their wake.30 And erratic weather and punishing droughts—like the one that now afflicts ninety percent of the West—exacerbate the overpumping problem, as communities frantically drill wells to replace the vanishing rivers and reservoirs.31
For the foreseeable future, the heavy burden of aquifer management will fall primarily on states.32 Groundwater is notoriously difficult to manage,33 and the patchwork of often-antiquated state laws that govern private use of groundwater frequently permits overpumping.34As a result, from the High Plains to the agricultural valleys of California,35 groundwater supplies are being depleted at alarming rates.36 Some—like the Ogallala Aquifer servicing much of the High Plains—will never replenish.37 The question of whether states can own the water within their borders sporadically bubbles to the surface of water law.38 Foreshadowing a future of increased competition over water above and below ground,39the Supreme Court this Term decided the first-ever interstate groundwater dispute.40 Mississippi sued Tennessee claiming that it was the victim of a “heist.”41 Mississippi alleged that Tennessee and Memphis, through the city’s water utility and at the direction of the state, were taking Mississippi’s groundwater from wells on the Tennessee side of the border.42 This claim, and the more than fifteen years of litigation it launched,43 proceeded from an assertion that the people of Mississippi own all the groundwater within the state’s territory.44 As Mississippi v. Tennessee was the first contest between states over an aquifer, commentary on the case understandably focused on how it would shape interstate water disputes in the decades ahead,45 largely ignoring how the Court’s handling of Mississippi’s ownership claim might affect water management within states. This Note aims to fill that gap.
Like Mississippi, many states, particularly those in the West, declare by constitutional provision or statute that the people of the state or the state itself owns the waters within its territory.46 Such pronouncements might be read as merely shorthand for individual states’ authority to regulate a resource that no one owns. Or they might mean what they say: the people of a particular state have a proprietary interest in its water, including its uncaptured groundwater.47 To endorse this second option is to affirm “state ownership.”
One thing is clearly settled: claims of absolute state water ownership—good against all comers and in all legal contexts—are invalid. Most importantly, this means that a state’s claim to own its water is largely meaningless beyond its borders. Although state ownership claims originated as inward-looking attempts by new states to assert control over their surface water, states soon turned these claims outward in disputes with other states and with the federal government.48 However, early in the twentieth century, the Supreme Court held that state ownership claims are irrelevant when it comes to surface-water contests.49 When it rejected Mississippi’s ownership argument in Mississippi v. Tennessee this Term,50 the Supreme Court harmonized groundwater and surface-water doctrine.51 Further, it is similarly clear that states may not rely on their purported ownership of surface water or groundwater to thwart federal supremacy.52
But if a state cannot use a claim of absolute ownership to shield its water from federal regulation or as a trump card in interstate water disputes, what—if anything—remains of state ownership? And does that remnant matter? This Note responds to these questions in turn: first, the state-law portion of the state-ownership doctrine remains intact, and, second, denying the integrity of that doctrine could have dramatic practical consequences, potentially imperiling states’ ability to enforce sound groundwater management in a climate-changed future.
To elaborate, the first part of this Note’s answer attempts to resolve the doctrinal puzzle of state water ownership in the modern era.53 It argues that a state can have nonabsolute—or what this Note calls qualified—possessory ownership. This ownership extends only to the state’s share of groundwater, arises from the state’s authority to define the property character of that water, and is valid for state-law purposes. A state’s share is the water it can use and allocate to private citizens—which may not encompass all the water within a state’s borders.54 Where state ownership exists, it derives from the state’s ability to allocate public and private property interests in its share. As such, if they so choose, the people of a state can give themselves—that is, the state—possessory ownership of that water.55 But, as state property law, that ownership is subject to federal supremacy.
This conception of state ownership is a modest one compared to states’ historical claims of absolute ownership of all water within their borders.56 Some state courts would find it unremarkable.57 Nevertheless, justifying the basis and limits of this qualified ownership is particularly important for two reasons. First, doing so clarifies a chronically confused area of water law.58 This more modest conception of ownership is ill-defined even when state courts recognize it59 and other commentators gesture toward it.60 By defining state ownership’s nature and extent in the modern era, this Note clarifies the difference between states’ police power and their proprietorship, and corrects legal positions from opposing sides. On the one hand, it disagrees with scholars, courts, and litigants who argue that even for intrastate purposes state ownership can only be fictive. Contrary to what this group often concludes, this Note shows that the Supreme Court has not abrogated (and could not abrogate, absent a specific conflict of federal and state law) the power of a state to define for purposes of state law the property character of the water that it controls.61 On the other hand, this Note also refutes the assertion states have continued to make—often to the detriment of Native American tribes—that they can own all water within their territory, not just the water that is theirs to use.62 This Note clarifies why state groundwater-ownership claims are rendered void when the water at issue is the object of federal and Indian reserved water rights.63
This Note builds upon this articulation of state ownership to explain the second reason why clarifying state groundwater ownership is important: doing so impacts states’ practical ability to manage this critical resource.64 Treating state ownership as a complete fiction—as opponents suggest—creates serious and often unappreciated ramifications that hinder sound groundwater policy. Returning to the scenes above, this Note explores three examples—takings challenges, insurance coverage, and water theft—where denying the validity of state ownership jeopardizes states’ ability to manage their groundwater. This inquiry comes at a time when many states have recently begun or are poised to exert greater control over their groundwater, transitioning the property laws and the regulations that govern its use.
Facilitating groundwater management is singularly important. A large common-pool resource hidden below ground and accessible to anyone with a big enough pump, groundwater invites overuse.65 State-imposed limits are necessary to prevent a race to suck it up. Chronic overdraft—consistently drawing water from an aquifer faster than it can recharge—has profound economic, legal, and environmental consequences.66 Among other ills, permitting a free-for-all empowers big pumps to the detriment of small ones. Lowering the water table makes it more expensive for every pumper and can displace other users. From Arizona to California, megafarms’ voracious pumping has ejected homeowners and driven smaller farmers out of business.67 Not long after the agribusinesses moved into the desert, nearby residents in Arizona suddenly found that their home wells were too shallow to reach water, spitting out sand instead; “chas[ing] the water downward” would have required money that these families did not have, so they were forced to move elsewhere.68 Designating groundwater as a state-owned resource, this Note argues, gives states greater ability to impose restrictions that avoid these unjust outcomes, protect property rights, and conserve groundwater reserves.69
While many scholars are concerned that allowing ownership to seep into water law creates doctrinal confusion,70 these three examples demonstrate the practical effects of rejecting the concept entirely.71 Further, making water state-owned carries important rhetorical force, inserting the public into the conversation about management and shaping the expectations of rightsholders.72 That water is the people’s property in a literal sense means that the regulatory interaction between the state and users is not a matter of private rights versus nothing or versus a vaguer “public interest,” but rather comprises an effort to balance private property rights on one side with the public’s equally concrete property right on the other.
This Note proceeds in four parts. Part I explains the history of state claims to own water and presents an important unresolved issue in water doctrine: is state ownership still valid for internal, state-law purposes? Yes, argues Part II. Articulating the first part of this Note’s thesis, Part II establishes the foundational point that states have broad authority to define property—including water—within their jurisdictions. And it shows that the Supreme Court has not rejected that fundamental principle. The Note then provides an account of state ownership’s basis and limits in the modern era. Parts III and IV address the stakes of recognizing—and denying—the qualified state ownership articulated in Part II. Part III sets forth the second part of this Note’s thesis, and provides three real-world examples in which state ownership enables greater state management of its groundwater. Part IV responds to concerns that recognizing qualified state ownership would confuse water doctrine or impede sound water policy in other ways. It also returns to Mississippi v. Tennessee: having shown the practical stakes that arise when courts, commentators, and litigants misapply the Court’s less-than-tidy holdings on state ownership, the Note argues that the Court missed an important opportunity to clarify the doctrine.