Law, Land Use, and Groundwater Recharge

Abstract

Groundwater is one of the world’s most important natural resources, and its importance will increase as climate change continues and human population grows. But groundwater has traditionally been governed by lax and uneven legal regimes. To the extent those regimes exist, they tend to focus on the extraction of groundwater rather than the processes — referred to as groundwater recharge — through which water enters the subsurface. Yet groundwater recharge is crucially important to the maintenance of groundwater supplies, and it is also highly susceptible to human influences, particularly through our pervasive manipulation of land uses.

This article discusses the underdeveloped law of groundwater recharge. It explains why groundwater recharge law, or the lack thereof, is important; it discusses existing legal doctrines that affect groundwater recharge, occasionally by design but usually inadvertently; and it explains how more intentional and effective systems of groundwater recharge law can be constructed. It also sets forth criteria for judging when regulation of groundwater recharge will make sense, and it argues that a communitarian ethic, rather than the currently prevalent laissez-faire approaches, should underpin those regulatory approaches. Finally, it argues for using regulatory fees as a key (but not exclusive) instrument of groundwater-recharge regulation.

Keywords: groundwater, recharge, forests, agriculture, irrigation, impervious surfaces, water rights, floodplains