BEYOND BOUNDARIES: WESTERN GROUNDWATER LAW IN THE AGE OF PERMANENT DEPLETION

Over sixty years ago, Wallace Stegner remarked that western water law was “so complex as to be utterly confusing to the layman.” The intervening decades have only made matters worse. The groundwater revolution across the High Plains-Ogallala Aquifer created legal and policy crises about water rights and groundwater management, which in turn produced even more complexity. Unimpressed, the aquifer has continued its permanent decline, because legal pumping still vastly exceeds recharge. Indeed, our chief management accomplishment is managing to deplete the aquifer despite five decades of earnest reform. Geologists know the aquifer better than ever, but legal and policy experts (and the politicians who typically employ them) mostly waffle and struggle. According to one irrigator, they do little more than “admire the problem” of permanent depletion. What, then, is to be done? This presentation reviews the principal problems which inhibit meaningful groundwater management across the High Plains. First, there is the political problem posed by powerful groundwater interests, which have successfully resisted most attempts to reduce pumping. Second, there is a cultural problem: groundwater communities understand their water supplies and property rights differently from their surface water counterparts, a difference which has profound legal implications. Ultimately, our biggest problems concern boundaries: between different water supplies; between local, state, and federal jurisdiction; between individual property rights; and between those rights and the public’s interest in its water supply. By recognizing these problems, it becomes clear that most of the legal obstacles to meaningful groundwater management reform—however politically potent—are more apparent than real. Building on recent achievements in water law, litigation, and hydrology, this presentation concludes with several recommendations that are informed by a respectful awareness of these problems and boundaries.