Water rights law and water rights doctrines

Each legal doctrine involving groundwater allocation and use discussed in this chapter has merits and demerits. The Rule of Capture applied in Texas, giving landowners ownership of underlying groundwater, provides great freedom of use by the landowner, but gives little protection against impairment by neighbours and little control by the state over the declining water table. The same holds true with the doctrines of Reasonable Use and Correlative Rights employed by Nebraska. With its requirements of permits prior to use, Kansas' Prior Appropriation Doctrine applied to groundwater provides a greater level of state control and protection of the water rights from other users. The doctrine's disadvantages are the lack of freedom of groundwater use by landowners and a heavy requirement of state resources (money and personnel) necessary to administer the complex system of water rights. However, once water rights are obtained under the various doctrines, all three states recognize them as property rights protected against government takings without compensation by the US Constitution's Fifth Amendment.

While the three states apply different allocation doctrines to its groundwater resources, a common and important element is that in each state the legal doctrine was applied early on, and it developed along with the growth of the state's population and water use. Even in Kansas, which changed from the Rule of Capture to the Prior Appropriation Doctrine in 1945, the predominant period of groundwater development occurred after 1945. Thus, there has been no need to superimpose a doctrine on a state having no prior existing water allocation law.

If a country has a problem of extensive exploitation of groundwater, it may benefit from having laws in place to administer, control and limit groundwater pumpage (Singh, 2002).26 Water allocation law could help if a country has the power to gain control over the groundwater resource and to provide some system of controlling further water use. However, having groundwater management laws in place does not necessarily insure groundwater conservation or prevent groundwater mining, as is shown by the declining groundwater problems in the High Plains aquifer states (Peck, 2003).27 Enacting groundwater management laws prior to the onset of intensive groundwater exploitation is preferable to waiting until exploitation occurs, but many countries in the world already find themselves dealing with aquifers that have declining yields, water quality or both.

Choosing a water allocation method is difficult, and the methods used in America are, of course, not the only choices. Some of the selection factors to be considered by a country include the type of legal doctrine already in place, if any, including constitutional protection of property against government takings without compensation; the extent to which groundwater resources are already being overused and the current rate of growth of groundwater use; the density of population and water wells; the strength and viability of the judiciary, administrative agency system and legal system in general to resolve water disputes expeditiously; and the availability of public funds and hydrologic and other scientific and legal expertise and data available to administer the system.28 A country having areas with large numbers of groundwater irrigation users per unit area might find the costs of administration of the Prior Appropriation Doctrine prohibitive. Moreover, superimposition of strict regulations might result in serious unrest or even revolt among water users. It might be preferable to have a system in which water rights are clearly defined, but little or no continuous administration is involved. For example, an alternative to the US doctrines might involve a hybrid system that would establish new rights and recognize existing ones, but having them last for a term of approximately 20 years as opposed to having them last in perpetuity.29 Water could be reallocated at the end of the term. The rights could be freely transferrable, and disputes could be resolved by arbitration or other alternative forms of resolution.

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