Breaking New Ground(water)

March 21, 2014

Court cases help shape U.S. groundwater policies

Many court decisions affecting the well water industry and groundwater resources were considered and decided in 2013. This article will cover some of the most important decisions from the past year.

Something Fishy

In February 2013, the U.S. Court of Appeals affirmed an earlier lower court decision in Casitas Municipal Water District v. U.S., in which the water district had been required to divert a certain amount of allotted water to a fish ladder in California for endangered steelhead trout. Casitas alleged that this was a taking of its property rights. 

After much back and forth through the courts over a period of several years, it was decided that, at the time of the decision, the claim was not “ripe,” meaning that the situation had not advanced to the point that the court could provide a solution. If the diversion interferes with water delivery to Casitas customers at any point in the future or forces the water district to turn down a new customer, however, the taking claim would then be considered ripe, and the courts would reconsider the issue.

Compact or Contract

In June 2013, the U.S. Supreme Court ruled unanimously in favor of the state of Oklahoma in Tarrant Regional Water District v. Hermann. In this case, Texas and Oklahoma were parties to the Red River Compact. Through this compact, Texas attempted to purchase water for the city of Dallas from Oklahoma. Oklahoma passed a law that essentially prohibited interstate sales of water.

Texas then filed suit, claiming that the dormant commerce clause was violated by Oklahoma discriminating against out-of-state purchasers of water and favoring in-state users. The Supreme Court ruled that the compact was a contract, and the terms of this contract allocated the water at issue to Oklahoma. Therefore, Oklahoma could prohibit or restrict the sale of water to an out-of-state purchaser. 

Out of Bounds

The Supreme Court of New Mexico released a long-awaited decision in Bounds v. State of New Mexico on July 25, 2013. Bounds challenged New Mexico’s domestic well statute, which requires the state engineer to grant a permit for a domestic well without any investigation whenever one is requested. Bounds holds senior water rights in a “closed basin.” In closed basins, the state considers all of the available water already allocated to users.

In a unanimous decision, the court ruled that the domestic well statute did not violate the prior appropriation doctrine nor the due process clause of the New Mexico Constitution. The prior appropriation doctrine gives the senior water user “the better right,” but does not dictate how uses are permitted. The state could place the burden of showing impairment of the senior water right on the senior water right holder without violating the prior appropriation doctrine. Because no property right had been infringed upon by the domestic well statute, no due process rights were involved.

This case received nationwide attention due to the importance of so-called “exempt wells” and the controversy surrounding them. Although binding only in New Mexico, the decision could influence water policy across the U.S. The Water Systems Council (WSC) and the New Mexico Ground Water Assn. both filed “friend of the court” briefs in the case in support of the domestic well statute. The court adopted many of the positions in the briefs in its decision.

Bragg-ing Rights

In August 2013, the Texas Fourth Court of Appeals ruled on Edwards Aquifer Authority v. Bragg. In 1979 and 1983, before the Edwards Aquifer Authority’s regulatory scheme went into effect, the Braggs bought two parcels of land with the intention of growing pecans on them. Young pecan trees are small and do not require much water. As the trees grew, however, the Braggs sought regulatory authorization to increase their water use.

The Edwards Aquifer Authority authorized a lower level of use than the Braggs sought — a level that, according to them, would make their farming operation economically impossible. The Braggs sued, alleging a taking. The trial court ruled in their favor, and the Edwards Aquifer Authority appealed. The Appeals Court affirmed the finding as a taking.

Low Flow, No Go

In October 2013, the Supreme Court of the State of Washington decided Swinomish Indian Tribal Community v. Washington State Department of Ecology (DOE). This case involved the validity of an amended DOE rule that reserves water in the Skagit River system for future year-round out-of-stream uses, despite the fact that in times of low stream flows, these uses could impair established minimum in-stream flows for fish, wildlife, recreation, navigation, and scenic and aesthetic values.

The court ruled that the DOE rule was invalid and the statutory exception for reallocating water for new uses when requirements for appropriating water for these uses cannot be met is a narrow exception. This rule had been used to allow a large number of water wells, affecting 475 homes and eight businesses. DOE and the Swinomish Indian Tribal Community agreed that well owners who had established groundwater use rights between 2001 and October 2013 would not be required to curtail use; however, the uses must be mitigated.

To Drill or Not to Drill

An important victory for water well owners involving the issue of mandatory hookups occurred in November 2013, when the Superior Court of Washington Co., Ga., found a city of Sandersville ordinance that prohibits drilling wells within its city limits unconstitutional. Furthermore, the court found that a private landowner has, under the Georgia and U.S. constitutions, the right to drill a well on his or her property subject only to the government’s reasonable rules and regulations looking to the protection, safety and health of its citizens.

This is an important legal victory for the Georgia Assn. of Groundwater Professionals (GAGwP) and for the well water industry as a whole. GAGwP entered this suit with member Rabun Frost and property owner Donald Ashley, challenging the fact that the city would not allow Ashley drill a well on his property inside city limits, where public water supply was available. According to Frost, having GAGwP behind this suit “made all the difference in the world,” because it demonstrated that the outcome would not only affect two local citizens, but also could have statewide and possibly national implications.

WSC and many state associations are constantly monitoring the many local, state and federal legal and legislative challenges the water well industry faces. In 2014, there will surely be many additional important decisions to report.

Margaret Martens is executive director of the Water Systems Council. Martens can be reached at mmartens@watersystemscouncil.org or 202.625.4387. Jesse Richardson is lead land use attorney for the West Virginia University College of Law, and policy and research advisor for the Water Systems Council. Richardson can be reached at jessehokie@gmail.com.

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