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.
Moses Lasky, From Prior Appropriation to Economic Distribution of Water by the State—Via Irrigation Administration, 1 Rocky Mtn. L. Rev. 161, 179 (1929) (citing Mohl v. Lamar Canal Co., 128 F. 776, 779 (C.C.D. Colo. 1904)) (criticizing a 1904 Colorado circuit court ruling interpreting the Colorado Constitution’s declaration that all unappropriated water within the state is “the property of the public,” Colo. Const. art. XVI, § 5).
See Nathan Rott, Study Finds Western Megadrought Is Worst in 1,200 Years, NPR (Feb. 14, 2022, 11:04 AM ET), https://www.npr.org/2022/02/14/1080302434/study-finds-western-megadrought-is-the-worst-in-1-200-years [https://perma.cc/3L8M-NK32]; Thomas Frank, Drought Spreads to 93% of West. That’s Never Happened, E&E News (July 7, 2021, 6:44 AM EDT), https://www.eenews.net/climatewire/2021/07/07/stories/1063736561 [https://perma.cc/9Z4R-8AME].
See Noah Gallagher Shannon, The Water Wars of Arizona, N.Y. Times Mag. (July 19, 2018), https://http://www.nytimes.com/2018/07/19/magazine/the-water-wars-of-arizona.html [https://perma.cc/W7DM-XBAK]; Ian James & Rob O’Dell, Megafarms and Deeper Wells Are Draining the Water Beneath Rural Arizona—Quietly, Irreversibly, Ariz. Republic (Dec. 27, 2019, 12:50 PM EST), https://www.azcentral.com/in-depth/news/local/arizona-environment/2019/12/05/unregulated-pumping-arizona-groundwater-dry-wells/2425078001 [https://perma.cc/M2MM-SWRE].
See Reed D. Benson, Burke W. Griggs & A. Dan Tarlock, Water Resource Management: A Casebook in Law and Public Policy 398 (8th ed. 2021). First identified as such by John Wesley Powell, the Hundredth Meridian is a hydrologic demarcation that runs north-to-south bisecting Texas and the Dakotas. It divides the wet East (where the average rainfall is twenty inches or more) from the arid West (where rainfall is typically less than twenty inches a year and more sporadic). See James Rasband, James Salzman & Mark Squillace, Natural Resources Law and Policy 745 (2d ed. 2009). There is evidence, however, that climate change has moved this arid-humid divide eastward, to the ninety-eighth meridian. See Joe Wertz, The Arid West Moves East, with Big Implications for Agriculture, NPR (Aug. 9, 2018, 8:37 PM ET), https://www.npr.org/2018/08/09/637161725/the-arid-west-moves-east-with-big-implications-for-agriculture [https://perma.cc/6D6U-PNZB].
See Shannon, supra note 3. Arizona’s groundwater regime is complicated, and these companies have exploited one of its gaps. Arizona enacted the Groundwater Management Act in 1980, which, among other things, created “Irrigation Non-Expansion Areas,” and a handful of “Active Management Areas,” where the state can and does impose pumping restrictions. Benson et al., supra note 4, at 398-402. These industrial farms have descended on the rural counties that lie outside of these regulated zones. James & O’Dell, supra note 3.
See Shannon, supra note 3; Rob O’Dell & Ian James, These 7 Industrial Farm Operations Are Draining Arizona’s Aquifers, and No One Knows Exactly How Much They’re Taking, Ariz. Republic (Dec. 20, 2019, 2:57 PM EST), https://www.azcentral.com/in-depth/news/local/arizona-environment/2019/12/05/biggest-water-users-arizona-farms-keep-drilling-deeper/3937582002 [https://perma.cc/RP64-XD5J]. Of course, out-of-state investment in the West’s water is hardly new. For example, in the postbellum period, the majority of capital financing the extensive irrigation systems in Colorado came from the East Coast and Europe, stoking anticorporate sentiments among farmers and fueling fears that Old World feudalism would be imported to the American frontier. See David Schorr, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier 68 fig.8, 70-71, 79 (2012); Elwood Mead, The Ownership of Water 3, 5-6 (Denver, Times Printing Works 1887) (on file with Beinecke Rare Book and Manuscript Library, Yale University) (complaining that the laws at the time threatened to allow out-of-state irrigation companies to monopolize the supply of water, implanting “aristocracy” and “landlordism”).
See Tom Lutey, DEQ Orders Bakken Company to Stop Handling Radioactive Waste, Billings Gazette (May 30, 2014), https://billingsgazette.com/news/government-and-politics/deq-orders-bakken-company-to-stop-handling-radioactive-waste/article_ea09bed0-77fb-5cfa-8b72-0a8a243c2b6d.html [https://perma.cc/RFT7-MYGC]; Endurance Am. Specialty Ins. Co. v. Dual Trucking & Transp., LLC, No. CV-18-134-GF, 2019 WL 4394146, at *1 (D. Mont. Sept. 12, 2019); Admiral Ins. Co. v. Dual Trucking, Inc., No. CV-20-53-GF, 2021 WL 1788681, at *2-5 (D. Mont. May 5, 2021).
Sarah Jane Keller, North Dakota Wrestles with Radioactive Oilfield Waste, High Country News (July 14, 2014), https://www.hcn.org/articles/north-dakota-wrestles-with-radioactive-oilfield-waste [https://perma.cc/G45P-YGYZ].
In this specific case, the court had yet to determine whether the company polluted groundwater. See Endurance Am., 2019 WL 4394146, at *4-5. As described later, a key issue in these kinds of groundwater-contamination cases is the “owned-property exclusion.” See infra Section III.B. In this case, the wording of that exclusion focused on whether the property was owned or controlled by the policy-holder. See Endurance Am., 2019 WL 4394146, at *4. But the federal district court here suggested that if groundwater had been contaminated, then the court would follow a Louisiana decision, see id. at *5, which looked to the ownership status of groundwater to determine the scope of the owned-property exclusion, see Norfolk S. Corp. v. Cal. Union Ins. Co., 859 So. 2d 167, 193 (La. Ct. App. 2003), writ denied, 861 So. 2d 579 (La. 2003).
See Julie Cart, Thieves Are Stealing California’s Scarce Water. Where’s It Going? Illegal Marijuana Farms, CalMatters (Jan. 25, 2022), https://calmatters.org/environment/2021/07/illegal-marijuana-growers-steal-california-water [https://perma.cc/6LFN-G5AW]; Brisa Colon, Thieves in California Are Stealing Scarce Water amid Extreme Drought, ‘Devastating’ Some Communities, CNN (Aug. 13, 2021, 12:18 AM ET), https://www.cnn.com/2021/07/22/us/california-water-thieves-drought [https://perma.cc/X94G-X4N3]; Byrhonda Lyons, California’s Desert Becoming a Hotbed for Water Bandits: Watch, CalMatters (Aug. 9, 2021), https://calmatters.org/environment/drought-2021/2021/08/thieves-stealing-california-water-drought [https://perma.cc/8K4Y-MNCL].
See Luke Runyon, In a Drying Climate, Colorado’s ‘Water Cop’ Patrols for Water Thieves, NPR (Oct. 11, 2018, 5:08 AM ET), https://www.npr.org/2018/10/11/654908677/in-a-drying-climate-colorados-water-cop-patrols-for-water-thieves [https://perma.cc/7PZQ-XNBL]; Hal Bernton, Water Theft Is Symptom of Bigger Troubles in Wapato Irrigation Project, Seattle Times (July 13, 2015, 3:06 PM), https://www.seattletimes.com/seattle-news/environment/water-theft-is-symptom-of-bigger-troubles-in-wapato-irrigation-project [https://perma.cc/DP3X-QDTZ].
See Jason R. Masoner et al., Urban Stormwater: An Overlooked Pathway of Extensive Mixed Contaminants to Surface and Groundwaters in the United States, 53 Env’t Sci. & Tech. 10070, 10070-71 (2019); Lynne Peeples, The Surprising Connection Between West Coast Fires and the Volatile Chemicals Tainting America’s Drinking Water, Ensia (Nov. 11, 2020), https://ensia.com/features/volatile-chemicals-vocs-drinking-water [https://perma.cc/U8M7-XBSG].
See Sasha Khokha, Drought Drives Drilling Frenzy for Groundwater in California, KQED (June 2, 2014), https://www.kqed.org/science/17873/drought-drives-drilling-frenzy-for-groundwater-in-california [https://perma.cc/U9F5-V94Y]; Sarfaraz Alam, Mekonnen Gebremichael, Zhaoxin Ban, Bridget R. Scanlon, Gabriel Senay & Dennis P. Lettenmaier, Post-Drought Groundwater Storage Recovery in California’s Central Valley, Water Res. Rsch., Oct. 2021, at 1, 1 (estimating that in the Central Valley “less than one-third of the groundwater overdraft from the most recent droughts was recovered during post-drought years”).
While some federal regulations directly or indirectly protect groundwater quality, state law controls the private allocation of water. See David H. Getches, Sandra B. Zellmer & Adell L. Amos, Water Law in a Nutshell 226-50, 272-73 (5th ed. 2015); infra note 243 (discussing the legal regimes for allocating private water rights).
See infra notes 397-409 and accompanying text; Dave Owen, Taking Groundwater, 91 Wash. U. L. Rev. 253, 255 (2013) (noting that groundwater’s “invisibility begets overuse”); Castellano, supra note 26, at 55-56 (noting that groundwater is more difficult—and more expensive—to track than surface water).
See Burke W. Griggs, Beyond Drought: Water Rights in the Age of Permanent Depletion, 62 Kan. L. Rev. 1263, 1264-65 (2014) (noting that the depletion of the Ogallala Aquifer “is accelerating,” that annually the aquifer is depleted by a “volume” roughly half “the annual flow of the waters of the Colorado River Basin,” and that this “depletion is permanent” because “across most of its range, [the aquifer] is effectively non-rechargeable”).
Ellen M. Gilmer & Jennifer Kay, Water Wars at the Supreme Court: ‘It’s Only Going to Get Worse,’ Bloomberg (Sept. 17, 2020, 1:16 PM), https://news.bloomberglaw.com/environment-and-energy/water-wars-at-the-supreme-court-its-only-going-to-get-worse [https://perma.cc/A8XP-NCFR].
See, e.g., Christine A. Klein, Owning Groundwater: The Example of Mississippi v. Tennessee, 35 Va. Env’t L.J. 474, 513-14 (2017); Noah D. Hall & Joseph Regalia, Interstate Groundwater Law Revisited: Mississippi v. Tennessee, 34 Va. Env’t L.J. 152, 192-94 (2016); Joseph Regalia, Why Mississippi’s Plea to the Supreme Court that It “Owns” Its Water and that Tennessee Is “Stealing” It Is Just Wrong, U. Chi. L. Rev. Online (Oct. 8, 2019), https://lawreviewblog.uchicago.edu/2019/10/08/why-mississippis-plea-to-the-supreme-court-that-it-owns-its-water-and-that-tennessee-is-stealing-it-is-just-wrong-by-joseph-regalia [https://perma.cc/TK2V-3MH7].
See, e.g., Wyo. Const. art. VIII, § 1 (“The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.”); Nev. Rev. Stat. § 533.025 (2020) (“The water of all sources of water supply within the boundaries of the State whether above or beneath the surface of the ground, belongs to the public.”). These pronouncements are discussed infra Section I.A.
Like many states, I use “natural” and “uncaptured” as synonyms for groundwater “that exists in underground storage owing wholly to natural processes” and has not yet been reduced to possession. Wash. Rev. Code §§ 90.44.035, 90.44.040 (2021). Typically, groundwater exists in the spaces within sand, gravel, and rock underneath the earth, after percolating down from the surface. When these porous subsurface water-bearing formations consistently provide a source of water, they are known as unconfined aquifers. The water table marks the upper limit below which the formation is saturated with groundwater. See Thompson et al., supra note 27, at 451. Confined aquifers, by contrast, exist beneath an impermeable layer of sediment, creating something like “a saucer embedded in the bowl of sand.” Id. at 452.
See Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982); infra Section II.B. That said, a state’s claim to own water is not entirely irrelevant beyond its borders: while such a claim cannot remove water from Commerce Clause analysis, it is a relevant factor in that analysis. See infra notes 303-307 and accompanying text.
See infra notes 247-251 and accompanying text. In this Note, I use “control” and “regulate” to mean different things, and these authorities are not necessarily coextensive. The water the state “controls” is its “share”: this is the amount of water the state has a right to use or allocate for private use, and thus is the water whose property character the state can define. Thus, a state’s ownership can only extend to its share. See infra Section II.A. However, the state may have the power to regulate more than its share, which would be water within its borders whose ultimate use it does not control. For example, an environmental statute might empower the state to regulate the pollutant levels of all water within its borders, but some of that water may be allocated to a different state or to a tribe. This would mean the state controls less water than it has authority to regulate. See infra Section II.C.3.
Like others, I agree that “public ownership” and “state ownership” are essentially synonymous: the water is owned (for state-law purposes) by the people of the state as a collective political body, and the state exercises control as the sovereign representative of the owner, allowing private usufructuary rights to the extent the people decide. See Farm Inv. Co. v. Carpenter, 61 P. 258, 265 (Wyo. 1900) (“There is . . . no appreciable distinction . . . between a declaration that the water is the property of the public, and that it is the property of the state. . . . ‘[T]he ownership is that of the people in their united sovereignty.’” (quoting McCready v. Virginia, 94 U.S. 391, 394 (1876))); Lasky, supra note 1, at 176 (reading Colorado’s provision to mean water “belong[s] to the people in their socially organized capacity and [is] capable of being reduced to private property on terms set by the state as the representative of that social organization”).
However, I use “state ownership” because (like Elwood Mead) I think it avoids implying water is the sort of public property freely accessible to anyone without constraints, see infra note 84, and because “state” rightly conveys that the owner is, in Carol Rose’s framing, the “governmentally-organized public” rather than the more diffuse “public-at-large.” Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711, 717 n.26, 721 (1986); see id. at 717 & n.26 (noting the “distinction between a corporately organized governmental ‘public’ and the unorganized public-at-large” and how the former can exercise property rights in ways the latter cannot).
Indeed, even those who are otherwise opposed to the introduction of “ownership” talk in state-federal water doctrine might be receptive to the inward-looking, state-law-based ownership this Note advances. See Amy K. Kelley, “Ownership” of Water, in 2 Waters and Water Rights § 36.02 & n.17 (Amy K. Kelley ed., 3d ed. 2021) (discussing, specifically, the role of ownership in state-federal relations, and noting “the futility of debating ‘ownership,’ when the real issue is the right to the control or use of water,” but also entertaining the idea that once a “set amount of water has been allocated to a state . . . then to a certain extent one may discuss the notion of state ‘ownership’ more legitimately”).
As one commentator in 1964 noted, “although . . . the assertion of state ownership became a commonplace of western water law” by “the turn of the century,” “the basis for and consequences of” that claim “are obscure.” B. Abbott Goldberg, Interposition—Wild West Water Style, 17 Stan. L. Rev. 1, 9 (1964). This confusion persists today. See infra Section I.B.
See Charles T. DuMars & Stephen Curtice, Interstate Compacts Establishing State Entitlements to Water: An Essential Part of the Water Planning Process, 64 Okla. L. Rev. 515, 532-33 (2012) (noting that “once the water is apportioned to a state,” the “compact or equitable apportionment decree” makes “the state . . . owner of the water in trust for the users within the boundaries”). In this Note’s view, all that a congressionally approved compact or Supreme Court decree does is determine the state’s share of water; neither automatically makes the state the owner of that water for purposes of the state’s property law. Doing so requires additional action: a state can, through its property-law-defining power, give itself ownership of that share for state-law purposes, but if the state fails to do so, no such ownership exists. See infra Sections II.A, II.C.1.
This doctrinal discussion has ramifications beyond groundwater. This Note focuses on groundwater because of its practical importance and because states appear poised to further regulate groundwater or even fundamentally alter the legal regimes governing its use, which makes clarifying the public’s rights in that water all the more valuable. See, e.g., infra Section III.A (discussing the importance of state ownership in takings challenges at a time when state groundwater laws are transitioning). But this Note’s conception of state water ownership applies to surface water as well. And its analysis informs natural resource ownership more broadly by clarifying the difference between state ownership of water or wildlife in the modern era from other (historical and current) forms of state resource ownership. See infra Section II.C.2.
See Shannon, supra note 3; Lois Henry, Where Is Central California’s Water Going?, High Country News (Dec. 7, 2021), https://www.hcn.org/articles/water-where-is-central-californias-water-going [https://perma.cc/6XWZ-95PR] (describing the difficulty of tracking groundwater pumping and how large agricultural operations’ extensive groundwater pumping in the Central Valley have driven smaller family farms out of business).
There are bound to be other instances when state ownership significantly impacts groundwater management. For example, while this Note discusses how state water ownership has influenced the determination of who owns the water-bearing space in the earth beneath private land, see infra notes 216-219 and accompanying text, it does not address how state ownership might come into play when an entity prevents water from reentering and recharging an aquifer, thereby diminishing its capacity. See generally Dave Owen, Law, Land Use, and Groundwater Recharge, 73 Stan. L. Rev. 1163 (2021) (analyzing how land-use decisions affect groundwater recharge, examining the “underdeveloped” body of law that governs recharge, and recommending ways to make that law more effective).
See infra notes 145-146 and accompanying text (discussing the rhetorical importance of state ownership during Wyoming’s founding era); see also Carol M. Rose, Left Brain, Right Brain and History in the New Law and Economics of Property, 79 Or. L. Rev. 479, 488 (2000) (noting that “our emotional responses to property derive from our expectations of entitlement”).