How water rights are granted and managed in the United States has always been a challenge. Unlike land grants, which are finite areas, water knows no boundaries and flows freely. How water is distributed, managed, and regulated has traditionally been treated separately by the type of water source even when sources are connected. And, within each source, such as surface runoff, regulations can vary depending on the characteristics of the source—perennial, ephemeral, or man-made.
Source: Managed Aquifer Recharge – Groundwater Exchange
Surface Waters
Rights to surface waters, regardless of use, are generally governed by rules developed when the United States was young and expanding. In the water-rich eastern U.S., rights are traditionally based on riparian doctrine. That is, landowners have the right to use water that is adjacent to their properties if the use is reasonable in relation to other riparian owners. Over time, distribution through the riparian method has been modified to include a permitted system of allocation by a state agency to control who can utilize water, and how much and when. With movement and settlement west of the Mississippi River, however, a second system was developed based on prior appropriation doctrine, or “first-in-time, first-in-right.” In this system, the first user has the right to use the water to the exclusion of those who came later. More recently, several states, including California and Oklahoma, have adopted a hybrid system containing parts of both doctrines.
Groundwater
The right to use groundwater also varies by state and doctrine. Eleven states apply a traditional absolute dominion rule, which allows property owners to use as much groundwater as they choose on their properties, regardless of how it affects others utilizing the same aquifer. Several states that object to this rule utilize the correlative rights doctrine, wherein landowners overlying the same aquifer are limited to drawing a reasonable share of the aquifer’s total supply, rather than having an absolute right to pump as much groundwater as they please to the detriment of others. Many western states continue to utilize the prior appropriation doctrine regarding groundwater, but limit usage to the amount that is put to a beneficial use on the property. There are also several states that have adopted a reasonable use doctrine, which is a modified version of the absolute dominion rule and requires groundwater on a particular property to be put to a reasonable use by the property owner and but also does not permit water to be transported to another tract of land. A few other states employ other modified doctrines based on those described above.
Federal Rights
On public lands, the federal government automatically has the right to a quantity of water that allows it to accomplish a specific purpose on that land. This includes Native American reservations, national parks, and forests. However, property owners can utilize the groundwater if they have established their rights before the federal government reserved the land.
For Native American tribes, the necessary use is the amount of water needed to irrigate all the tribe’s practicably irrigable acreage. These rights are reserved even if the water is not utilized. The May 2022 settlement between the State of Utah and the Navajo Nation, called the Navajo Utah Water Rights Settlement Agreement, allows the Navajo Nation to deplete 81,500 acre-feet of water per year from Utah’s Colorado River Basin apportionment and authorizes around $220 million for water infrastructure projects. This agreement was approved by Congress in 2020 and recognizes the water rights of the Navajo Nation in Utah and also provides funding for infrastructure improvements and development. The U.S. Supreme Court this session will also hear arguments stemming from a 9th U.S. Circuit Court of Appeals ruling in February that sided with the Navajo Nation, stating it could sue the government over its water policies in the Colorado River Basin and continue to siphon water from the Colorado River.
Competing for Water
Regardless of the state regulation, there are always conflicting interests related to how much surface or groundwater can be utilized or diverted for agriculture, industry and/or population. In one part of Colorado, regulators and the water court are debating a plan brought by private investors to ship water from an aquifer in one part of the state to a community in another part. This would involve purchasing water from farmers and ranchers who have worked the land for more than 200 years and have seen their water table lower significantly. However, most western states have specific laws that do not permit this type of water transfer.
This also is the case with managed aquifer storage and recovery systems. With no federal regulation in the U.S. governing rainwater collection, state regulations vary and factor in such elements as the local definition of “water rights” and availability of water supplies. Most states are behind the curve in developing plans to create and recharge underground aquifers and secure adequate water for their populations and agricultural needs. These plans also vary depending on where most communities get their water supply. In some cases, nonprofits are being formed to privately manage aquifer storage. However, storage projects are technologically challenging, and the permitting process can be costly and lengthy. For example, note the new California permitting process depicted below.
Source: Water right permitting options for groundwater recharge: Avoiding unintended consequences - Legal Planet (legal-planet.org)
However, managing water runoff from flood events (stormwater) and reworking wastewater are probably the best ways to secure the world’s future in providing water for generations to come.
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