Who's Afraid of State (Groundwater) Ownership?
Posted: 23 Nov 2021 Last revised: 24 Nov 2021
Date Written: October 1, 2021
Climate change—bringing worse drought and more erratic weather—stands to increase our need for groundwater. In turn, hotter temperatures, encroaching seas, wildfires, and storms could shrink the amount available. Our reliance on groundwater poses stark legal and policy challenges. Groundwater is a notoriously difficult resource to manage, and most of the burden of conserving the nation’s aquifers falls to the states. But within many of these states, a patchwork of often antiquated legal regimes allows for an unrestricted race to pump aquifers dry. As a result, from the High Plains to the agricultural valleys of California and the desert farmland of Arizona, groundwater reserves are being depleted. Some will never come back.
Against this backdrop, this Note addresses a question that the Supreme Court confronted this term: Can states own the groundwater within their borders? Clarifying a particularly muddied area of water law, this Note shows why states can have a limited proprietary interest in groundwater they control. More important, it demonstrates how denying that fact could imperil sound groundwater management when we need it most.
Most states, particularly in the West, claim that the people of the state or the state itself owns the waters within or beneath its territory. But are such pronouncements merely shorthand for the state’s authority to regulate a resource which no one owns? Or can we understand them to mean that the people or the state have a proprietary interest in water, including uncaptured groundwater?
One thing is clearly settled: a state’s claim to own its water is largely meaningless beyond its borders. As the Supreme Court reiterated in Mississippi v. Tennessee, 595 U.S. __ (2021), state ownership claims are irrelevant when it comes to water disputes between states or between a state and the federal government. Nor can states rely on ownership claims to thwart federal supremacy. So what—if anything—remains of state ownership?
This Note responds to this controversial question with a two-pronged answer: first, the intrastate portion of the state ownership doctrine remains intact, and, second, denying the integrity of that doctrine could have serious practical consequences, potentially imperiling sound groundwater management in a climate-changed future.
To elaborate, in the first prong of its answer, this Note attempts to resolve the doctrinal puzzle around state water ownership. It argues that for state-law purposes, a state can have a possessory or proprietary ownership in its share of groundwater based on its authority to define the property character of that water. A state’s share is the water that it controls and that it can allocate to private citizens. This may not be all the water within a state’s borders. As a creature of state property law, any state ownership is subject to federal supremacy. This conception of state ownership is a modest one compared to states’ historical claims of absolute ownership.
By justifying the basis and limits of state water ownership in the modern era, this Note attempts to clarify a chronically confused area of water law. This more limited conception of ownership is ill-defined even when state courts recognize it and when other commentators have gestured toward it. More, by defining state water ownership’s nature and extent, this Note corrects legal positions from opposing sides. On the one hand, it disagrees with those who argue that even for intrastate purposes state ownership can only be only fictive. But this Note also dispels claims from the opposite side. It refutes the assertion states continue to make—often to the detriment of Native American tribes—that they can own all water within their territory, not just their share of that water.
Turning specifically to groundwater, this Note builds upon its theory of state water ownership to explain why clarifying the doctrine is important: doing so impacts states’ practical ability to regulate this critical resource. In the second prong of its answer, this Note shows that treating state ownership as a complete fiction creates serious, often unappreciated real-world ramifications that hinder sound groundwater management.
It offers three examples where denying the validity of state ownership could jeopardize groundwater management. First, as states confront a hotter, drier, more sporadic climate, they may further restrict private use of groundwater. Whether a state can be said to own its groundwater—in the proprietary sense—might matter significantly for whether the state can defeat takings claims or feel empowered to regulate in the first place. Second, rejecting state ownership would mean that in many cases, the ubiquitous liability policy that businesses in the United States buy will not cover the cost to clean up polluted natural groundwater. Finally, as states struggle to contain unauthorized use of groundwater in the dry decades ahead, officials may seek to prosecute that unlawful use as theft under state criminal codes. But if a state cannot own its natural groundwater, that water is unowned, and, consequently, not subject to larceny.
While many scholars are concerned that allowing “ownership” talk to seep into water law creates doctrinal confusion, these three examples demonstrate the practical effects of banishing any such talk entirely.
Keywords: Groundwater, water, ownership, Mississippi v. Tennessee, federalism, property, equitable apportionment, takings, water theft, climate change, original jurisdiction, Supreme Court
JEL Classification: K11, K32, Q25, Q54
Suggested Citation: Suggested Citation