Notes

1 To date, interstate water compacts have involved primarily rivers and only tangen-tially groundwater. Litigation on one such compact is discussed in the section on interstate conflict with the state of Kansas. However, a model interstate compact specifically involving groundwater is being discussed (The Utton Center, 2004), and Oklahoma legislation in 2001 proposed a multistate groundwater compact (The Bimonthly Newsletter, 2001).

2 For surface water allocation, the USA is divided into two regions and two doctrines. In the eastern states, those states lying east of the High Plains region, precipitation is abundant. These states use the 'Riparian Doctrine'. By virtue of owning land adjacent to a river, riparian landowners have the right to use a reasonable amount of water on their riparian tracts, but their rights are shared with other owners. They neither gain their rights by using the water nor lose them by ceasing to use the water. Courts settle disputes.

In the west, the 'Prior Appropriation Doctrine' holds that 'first in time is first in right'. The first person to use water along a stream gains the 'senior right' to a reasonable quantity for that type of use. Each right that follows is 'junior' to the senior right, but senior to those that follow still later. In times of water shortage, junior rights may be shut down in favour of more senior rights. Most western states now have elaborate administrative systems requiring permits prior to diversion. Water use is not restricted to riparian land. Rights not used are lost by abandonment. Either courts or administrative agencies settle disputes.

3 Apparently, terms such as 'safe yield' and 'aquifer overdraft' have fallen out of favour with groundwater hydrologists. 'Sustainable use' has replaced 'safe yield', and 'intensive groundwater exploitation' has replaced 'aquifer overdraft'. Nevertheless, this chapter uses the term 'safe yield' throughout, because Kansas regulations continue to use the term. Kansas Administrative Regulations §5-1-1 (mmm) defines 'safe yield' as 'the long-term sustainable yield of the source of supply, including hydraulically connected surface or groundwaters.'

4 For example, the final report of the special master in Nebraska v. Wyoming (No. 108, Original, US Supreme Court) contains this statement: 'The settlement negotiations, therefore, specifically addressed that groundwater pumping concern, and the parties agreed on a definition of a 'hydrologically connected groundwater well' as a well 'so located and constructed that if water were intentionally withdrawn continuously for 40 years, the cumulative stream depletion would be greater than or equal to 28% of the total groundwater withdrawn by that well.' NPDC Charter, Ex. 4, para. III.D.2.b' (Nebraska v. Wyoming, 2001, p. 31).

5 Professor Norm Thorson and others have provided summaries of Nebraska water law (Thorson, 1991, pp. 494-496; Nebraska Water Policy Task Force, 2004).

6 The Nebraska legislature has expressly found that pumping water for irrigation from wells located within 50 ft of the bank of a stream may have a direct effect on the stream (Nebraska Revised Statutes, 2005, §46-636), requiring a permit in such cases (with some exceptions) (Nebraska Revised Statutes, 2005, §46-637). Another legislative section prohibits the drilling of irrigation wells within 600 ft of a registered irrigation well (Nebraska Revised Statutes, 2005, §46-609).

7 The Nebraska Association of Resource Districts is the trade association for the NRDs (Nebraska Association of Resource Districts, 2005).

8 The Edwards aquifer supplying San Antonio with municipal water supply is not part of the High Plains aquifer. The legislature has treated the Edwards aquifer differently by empowering the Edwards Aquifer Authority to regulate and restrict Edwards aquifer use (Waters and Water Rights, 1991 and 2004 Cumulative Supplement, v. 6, pp. 787-792).

9 These goals include the following: (i) providing the most efficient use of groundwater; (ii) controlling and preventing waste of groundwater; (iii) controlling and preventing subsidence; (iv) addressing conjunctive surface water management issues; (v) addressing natural resource issues; (vi) addressing drought conditions and (vii) addressing conservation (Texas Water Code, 2005, §36-1071).

10 See footnote 3.

11 The classic statement of this trend appears in a California case: 'All things must end, even in the field of water law. It is time to recognize that this law is in flux and that its evolution has passed beyond traditional concepts of vested and immutable rights' (Imperial Irrigation District v. Water Resources Board (1990), pp. 250, 267). To some extent, Texas is an exception. In 1999, the Texas Supreme Court refused to abandon the Rule of Capture in favour of the Reasonable Use Doctrine (Sipriano v. Great Springs Waters of America, Incorporated. 1999) discussed earlier.

12 In the Imperial Irrigation District case, the California court did not define waste, but concluded that 'wasteful practises' included 'canal spills, excess tailwater (the water running off the "tail" of a farm as the result of excess water being introduced at the "head" of the system), and . . . canal seepage' (Imperial Irrigation District V. Water Resources Board, 1990, p. 258). In Kansas, DWR regulations define 'waste of water' as 'any act or omission that causes any of the following: (i) The diversion or withdrawal of water from a source of supply that is not used or reapplied to a beneficial use on or in connection with the place of use authorized . . . (ii) the unreasonable deterioration of the quality of water . . . thereby causing impairment . . . (iii) the escaping and draining of water intended for irrigation use . . . or (iv) the application of water . . . in excess of the needs for this use' (Kansas Administrative Regulations, 2005, §5-1-1 (cccc) ) . GMD regulations prohibit waste of water (Kansas Administrative Regulations, 2005, §§5-21-2 and 5-22-3).

13 Kansas statutes do not expressly define the term 'impair', but K.S.A. §82a-711 states that 'impairment shall include the unreasonable . . . l owering of the static water level . . . beyond a reasonable economic limit.' A 1973 Kansas district court case held that impairment had occurred when 'plaintiff's authorized diversion rate is decreased by at least 20% in addition to the rate reduction caused by the pumping of plaintiff's irrigation well' (File v. Solomon Valley Feedlot, Incorporated, 1973, para. 5).

14 Other authors raise the same issue (Llamas, 2004, p. 9).

15 For the use of the term 'safe yield', see footnote 3.

16 The example of dividing a piece of pie requires one child to cut the larger piece into two parts and then permits the other child to pick which piece he or she wants.

17 Llamas presents a similar view: 'Fossil groundwater has no intrinsic value if left in the ground except as a potential resource for future generations, but are such future generations going to need it more than present ones?' (Llamas, 2004, p. 9)

18 'Kansas ranked second nationally with 6.65 million cattle on ranches and feed yards as of January 1, 2004. * * * Cattle represented 61% of the 2002 agricultural cash receipts. * * * Kansas ranks second in commercial cattle processed with 8.9 million head in 2003 . . . second in value of live animals and meat exported to other countries at $822.2 million in 2001 . . . second in fed cattle marketed with 5.5 million in 2003 . . . [which] represents 23.2% of all cattle fed in the USA' (Economic Impact of the Kansas Livestock Industry, 2005).

19 Oklahoma, for example, once sought to prohibit interstate transfer of minnows seined from waters of the state (Hughes v. Ok/ahoma, 1979). Other examples include natural gas (West v. Kansas Natura/ Gas Company, 1911; Pennsy/vania v. West Virginia, 1923); game birds (Geer v. Connecticut, 1896); river water (Hudson County Water Company v. McCarter, 1908) and groundwater (City of A/tus v. Carr, 1966).

20 Citing Pike v. Bruce Church, Incorporated, 1970.

21 The Nebraska Supreme Court upheld the constitutionality of the new section (Ponderosa Ridge LLC v. Banner County, 1996). Similarly, Kansas amended Kan. Stat. Ann. §82a-726 in 1984 to remove a comparable reciprocity provision and to protect the 'public health and safety' of its citizens.

22 In Arizona v. Ca/ifornia, 1963, the US Supreme Court held that the Boulder Canyon Project Act 1928, enacted by the US Congress, represented a comprehensive scheme of apportioning waters of the Colorado River.

23 The Texas Water Development Board held a symposium on the subject in June 2004.

24 The late Professor Corwin Johnson taught at the University of Texas School of Law and was a leading authority on Texas water law.

25 See page 99, above.

26 The following is a contrasting position: 'Many policy researchers, including the IWMI-Tata researchers . . . believe the case for direct regulation hopeless in south Asian settings, not because it is unnecessary or undesirable but on the grounds of administrative feasibility and costs.' The authors, however, point out that 'China's experience with direct management (including well and withdrawal permits) ... has at least shown some positive signs' (Shah et a/., 2004, p. 3456).

27 That article came out of a paper delivered at the World Water Council 3rd World Water Forum in Kyoto, Japan, in March 2002.

28 In my talk on groundwater doctrines at the 3rd World Water Forum, I described the Cheyenne Bottoms dispute, which involved 800 irrigators in a dispute with 15 lawyers taking over 2 years to resolve. See pages 302-303 on the necessity of compensation. Dr Singh responded to that in contrast, the comparable situation in India would involve 8000 irrigators in an even smaller geographical area, with perhaps only one or two lawyers and requiring more than 20 years for the judicial system to resolve the issue. In 'irrigation institutions', the authors state that India has '20 odd million pump owners, a number that is growing at the rate of 0.8-1 million per year' (Shah et a/., 2002, p. 3456).

29 South Dakota, for example, provides that permits for works to withdraw water from the Madison formation in certain counties are limited to 20 years, unless the Water Management Board determines that there would be no adverse effects on other Madison formation users (South Dakota Codified Laws, 2005, §46-2A-20).

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