Schroeder Law Offices P.C.1
Global Challenges for Water Governance
Old, New and Innovative Policies and Institutions: Are We Still Running Behind?
Conjunctive Management Policy Innovations Facing Regulatory and Governmental Stalemate in Western United States
In the arid western United States, the legal regimes used to allocate water are shifting between the previously distinct surface water and groundwater designations to a more holistic approach to recognize the interplay between the two sources of water. Regulating the interplay between the two water sources is termed "conjunctive management," and several western states have taken steps to recognize the relationships between groundwater and surface water sources. However, other western states are resisting the effort to create a more efficient regulatory scheme.
In those last holdout states, the failure to implement the "conjunctive management" regulation is caused, in large part, by a stalemate between the administrative and legislative agencies who govern water use, with each too stubborn to take the first step toward governance under a new regulatory paradigm. With water becoming more scarce in the western United States, it is becoming more important to join the science with the policy to create a system of water resource management that benefits all. However, as we see in many areas of scientific advancement, the policy and regulation are struggling to catch up with the science.
For over a century, many states regulated surface water in conformity with the prior appropriation doctrine, allowing the first in time water user the ability to satisfy his or her water needs prior to other later in time water users. These surface water regulations used readily identifiable information to observe and measure stream flows at points of diversion allowing a regulator to determine how much water was being used in a particular area; and, if the need arises, to allow for junior water appropriator to satisfy a senior appropriator's needs. Alternatively, the groundwater regulatory approach between groundwater users was one of determining limited, critical or otherwise similar aquifer designations where users within the area were allocated a "sustainable" quantity by priority to avoid groundwater mining. Other regulatory schemes reached a similar result through the "reasonable" use doctrine common to the riparian system of appropriation.
More recently, in the western United States, the states have looked at the way surface water and groundwater are sometimes connected; recognizing in some cases that groundwater use affects surface water use. The concern is that while maintaining the prior appropriation doctrine of first-in-time, first-in-right priority system, there are situations where senior surface water right holders may be unable to satisfy their water demands because junior groundwater appropriators are using water from water sources that are connected, as in situations where groundwater and surface waters have a definable and demonstrable "hydraulic," or "hydrologic connection." This creates tension between the two different regulatory frameworks that were previously considered as distinct sources and regulated separately without consideration between surface water and groundwater sources.
Conjunctive Management, as referenced above, stems from the concept of Conjunctive Use, which refers to a theory in which both groundwater and surface water are viewed as a single system. Conjunctive Management is a concept in which both sources of water are managed so each can be used in the most efficient way possible. In those western states where prior appropriation is the law, they allow the priority system to stay intact while achieving this goal. States such as Colorado, Idaho, Oregon, Washington, Utah, and others have already developed a new regulatory framework to manage connected water sources together.
However, in other states, such as Nevada and California, no express statutory or administrative scheme is in place for Conjunctive Management of surface and groundwater sources. Applications for new and changed uses of groundwater must be rejected if they conflict with "existing rights." However, many administrative water rulings continue to ignore known relationships between groundwater appropriations and reduced surface flows, focusing on a statutory distinction between surface and groundwater, and based upon the application made rather than the conjunctive nature of water.
The negative effects of regulatory failures to adopt a more progressive system of water resource management are being seen now more than ever. Scientific evidence tells us that the groundwater and the surface water resources are connected in many areas. An example of this is that which is occurring in the Humboldt Basin in Nevada, a basin that extends for 225 miles across the northern part of the state and encompasses approximately 16,840 square miles of land. In this basin many agricultural users of water have seen no water allocation in recent years.
Studies evidence that the various groundwater aquifers beneath the Humboldt Basin are hydrologically connected to the river itself. While one cannot deny the severe drought's involvement in the lack of water in the western United States, the decrease in surface water has also been linked to excessive groundwater withdrawals by junior appropriators. With no regulatory scheme in place to protect the senior surface water rights, those with superior rights continue to go without water.
Recognizing that water is connected in certain situations is not surprising to anyone who has dug a hole in the sand at the beach. However, beyond that simple comparison, two separate legal systems have evolved over the past century and a half, with rights to use water allocated to those in both systems. Lifestyles, consumer expectations, and communities have followed that development.
The movement forward into a unified water management system has issues to overcome where deeply rooted legal theories are being reshaped into more interconnected systems. These changes can cause uncertainty and prohibit development in some situations. However, creative ways of looking at the law and the facts of the situation could enable new water users to come to the table. Until we work to bring outdated policy up to date to coincide with the hydrologic research being conducted, management of water systems in the western United States, and elsewhere in the world experiencing similar problems, will continue to struggle to better allocate this precious resource.