12 Aug 2008

Groundwater Adjudication

The worst kept secret in water management is the importance of groundwater. Not only does a HUGE share of water supply originate in groundwater, but we have little idea of how much is there or can be taken.

Because most landowners (farmers, cities, speculators) have the right to pump as much groundwater as they want, there is a distinct possibility that pumping on one property will reduce the water available on another property. That's because many properties may overlie a single aquifer.

The "solution" to this problem (called a common pool problem) is usually adjudication, i.e., the establishment of limited rights over water in the aquifer.* These rights may take the form of limits on the hours of pumping, total quantity pumped or exports of pumped water. The trouble is that it's hard to figure out what quantities of adjudicated water belong to each property because it's hard to know how much water is under properties and how water flows under properties (either naturally or because of withdrawals).

All of these factors get more complicated when we consider that rivers and groundwater affect each other (there are flows between them), some pumped water returns to the aquifer below (by infiltration), and laws and traditions on withdrawals are often based on use instead of sustainable supply -- a problem that's particularly nasty when someone wants to pump and export water.

So, I met a geologist groundwater hydrologist and asked this question about groundwater: How hard is it to do the models to figure out how much there is and what the sustainable yield is? For instance, can we classify aquifers into:
  1. Yep, we know what's up.
  2. We have a clue +/- 10%
  3. We've no idea...
The first type could be adjudicated most easily; the second, if it was an important basin and adjustments (in response to mining) were possible. The third would have to be managed/regulated in some basic sense (i.e., pump tax that rises as head [water level] falls...)

This is what he said:
Models can be very simple to quite complicated.
  1. It depends on the aquifer system being modeled and our knowledge of it. How well we know an aquifer also depends on the location, type of aquifer, and often how deep it is? You have to drill to understand deep aquifers, but drilling is expensive.
  2. Does the modeler know what they are doing? (You'd be surprised.)
Unfortunately, the longer I've modeled, the less I believe in it. Rather, I realize the potential for error and uncertainty.

Can we classify aquifers? Yes, and the simpler the classification, the better. If we're not careful, we'll rape our resources and the cost for finding alternatives is expensive.
Bottom Line: The science of aquifers is really tricky and really necessary for making good policies, assigning rights, etc. If we don't know what's going on, it's better to be conservative on how much water is withdrawn or how many rights are allocated.

* A simpler economic method to limit overpumping is to set a tax on pumping (hp/hr) that rises if the water table falls.


Francis said...

One of the fun things about reading your blog, David, is the way you oscillate between condemning government and advocating for more government.

There are two practical ways to get a handle on groundwater pumping: lawsuit and ordinances. You've already touched on lawsuits; as Antelope Valley farmers are learning, groundwater adjudications can take over a decade to resolve. Ordinances are easier to adopt, but are frequently so unpopular that there is no political will to do so.

Lesson for the day: Creating a water market requires clarifying and quantifying the rights of individuals. But the process of doing so involves so much government that people are reluctant even to start the process, especially when the outcome remains uncertain.

Simplifying the process whereby surface and groundwater rights can be quantified and marketed has proven ... elusive.

David Zetland said...

Francis -- good point. That's why my market ideas always start with "define rights."

You will also note that there are plenty of adjudicated basins/districts/etc. that STILL do not use markets. They are my low-hanging fruit.

There's a simple explanation to my oscillations on government involvement: Government is useful, sometimes.

Anonymous said...

My understanding is that the Water Commission Act of 1913 didn't touch groundwater (as opposed to surface water) because it was too difficult to understand in order to comprehensively regulate it. I have also heard that the science of groundwater hydrology (like you, apparently, I can never remember what you actually call a specialist in this field) has improved a lot since then, although it it still terribly tricky. So the argument may be diminishing that we should not go to statewide regulation of groundwater extraction, as most other states do. You are entirely correct that an adjudication is gnarly, so this may be a good development when it comes.

Politically unpopular is very correct. Most landowners, a lot of them farmers, consider the water underneath their property a basic element of the property rights inherent in the land. In other words, if you buy a piece of land, the one thing you know is that you can drill a well and if you hit water you're entitled to make the land bloom. And I don't think anyone can say that is wrong, not in any absolute sense.

There is a correlative nature to rights to an aquifer, however. And public trust values probably inhere in groundwater no less than surface water, too. So, surprise, surprise, once again we come to a clash of competing viewpoints and competing interests.

Keep up the good work!

WaterSource/WaterBank said...

If adjudication of groundwater comes, my advice to those who claim water rights to be very very careful...

In retrospect, there are numerous ways to approach the situation. Adjudication, means "by the Judge". How you play the "game" depends upon how the "game" is defined by the Court ... you have to know exactly what kind of a system the Judge/Court is placing the various claimants into.

For example, placing the groundwater claimants of water rights into an already existing priority system can be simply a matter of notifying everyone that the groundwater rights are junior in priority to all existing surface water rights and consequently, they are rarely, if ever in priority to receive any water.

This is exactly what happened on the South Platte, Arkansas and Rio Grande Rivers.

Forty years later, ALL wells other than exempt domestic wells were Ordered shut-off because the senior surface water rights were not fully receiving their adjudications in the priority system...surprise, surprise ... to everyone except those who attended my real estate classes.

Be careful and think the whole situation through before rushing for Judgement.

There are various ways of making legitimate claims to groundwater that can integrate groundwater diversions into a priority system WITHOUT BEING SUBJECT to being the "last in line at the drinking fountain".

DZ hates this part, but NON-TRIBUTARY water is perfect for augmenting groundwater depletions in an existing priority system because there is .... NO DAMAGE to existing surface water rights, which is what a real reliable system is all about.

I love the Courts because when things are done correctly, there is proper jurisdiction, proper notice and a finality in the Finds of Fact and Conclusions of Law to protect the Applicant as well as all those who depend upon certainty/finality in making economic decisions (res adjudicata).

If you don't have the priority rights you need, acquire a piece of a Source that is real and in which care, custody and control can be recognized as legitimate for PERMANENTLY solving water supply needs.

The burden is justifiably always upon the applicant to prove non-injury and there is nothing better than to augment with totally new water ! ( ask those in the three major river basins I mentioned ... thousands of well owners scrambled to acquire NON-TRIBUTARY WATER !

WaterSource/WaterBank waterrdw@yahoo.com
Retired Water Rights Analyst

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