CHAPTER 1 OVERVIEW OF GROUNDWATER CONTAMINATION AND BASIC CONCEPTS OF WATER LAW

• Jurisdiction: United States

Ground Water Contamination
(May 1991)
CHAPTER 1
OVERVIEW OF GROUNDWATER CONTAMINATION AND BASIC CONCEPTS OF WATER LAW
Lawrence J. MacDonnell
Natural Resources Law Center University of Colorado School of Law
Boulder, Colorado

I. INTRODUCTION

Water may be water but there is something different about groundwater. Or, at least, groundwater has been treated differently under the law. Early English cases, regarding groundwater as "unknown and unknowable," simply permitted unlimited development and use. And, in the 1960s and 70s when water quality became a national concern, groundwater received very limited attention. Places like Love Canal and Times Beach changed all that. We became aware that groundwater pollution of serious proportions existed at some locations and we began to be concerned that contamination existed far more widely than we had suspected.

This was a realization of no small importance. Groundwater accounts for 95 percent of the fresh water supply in the world (excluding glaciers).¹ Approximately 50 percent of the U.S. population relies on groundwater as a source of drinking water.² In 20 states, more than 75

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percent of the population relies on groundwater for drinking water. Most rural areas rely directly on potable groundwater for their drinking water supplies.

Moreover, groundwater provides other important needs: groundwater supplies 40 percent of all water used for irrigation.³ Groundwater is especially important for this purpose in the states of Arizona, Arkansas, California, Idaho, Kansas, Nebraska and Texas. These seven states account for two-thirds of all groundwater withdrawals in the U.S.

In some areas groundwater also provides an important source of supply for industrial use. Nationwide, 15 percent of directly supplied industrial water uses comes from groundwater.⁴ In states such as California and Florida the proportion is much higher.⁵

Growing awareness that this important resource was increasingly at risk prompted considerable federal and state activity during the 1980s. Efforts were made to document the extent of the groundwater contamination problem and to identify the sources of this contamination. The U.S. Environmental Protection Agency (EPA) considered its regulatory role. Congress debated the merits of a national groundwater program.⁶ At the same time the

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states, with support from EPA, began developing comprehensive groundwater quality protection programs.⁷

We have made considerable progress during this period in identifying the nature of the groundwater contamination problem and in initiating regulatory activities aimed at protecting the resource. One of the ways that groundwater is different is the expense and difficulty of restoring contaminated groundwater supplies once they have become polluted. This places a premium on preventing pollution in the first instance.

This paper provides the background and context for discussion of the regulatory activities now underway at the federal and state level. The paper begins with a discussion of the types and sources of groundwater contamination. It emphasizes that this is not a widespread problem but a site specific one for the most part. Of concern is the relatively limited degree of our knowledge about the actual extent of the problem.

The primary purpose of the paper is to present a general summary of groundwater allocation law. In particular, the rules governing development of groundwater under the various landownership theories, appropriation, or modified appropriation are discussed. The primary difference concerns the limitations to development stemming from effects on the rights of others to develop.

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The next section discusses several specific issues related to groundwater law. These are well interference and groundwater mining, surface water / groundwater relationships, and groundwater transfers.

The final section addresses the common law remedies for groundwater pollution. Until recently the only recourse for groundwater pollution depended on evidence of damage to some interest protected as a matter of tort law. This discussion points out the limited scope of protection afforded by these common law options.

II. THE NATURE AND EXTENT OF GROUNDWATER CONTAMINATION

A major report by the Office of Technology Assessment (OTA) in 1984 concluded that "there is a growing consensus that the quality of groundwater is in decline."⁸ Interestingly, OTA reports that probably only one to two percent of the Nation's groundwater is contaminated though it quickly points out that this gross quantification understates the importance of the problem. Contamination most often occurs in the areas of greatest use of groundwater. Quality sampling only occurs where there is municipal use of groundwater for drinking water supplies. And there is increasing use of the substances most likely to contaminate groundwater so that the threat to groundwater quality may be increasing.

Protection of groundwater is greatly complicated by the enormous diversity of possible sources of contamination. One category of sources includes those involving land disposal of

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waste materials. There are many thousands of solid waste disposal sites that have operated historically with essentially no regard for possible effects on groundwater. Especially since World War II the development and use of a wide variety of toxic substances have created new kinds of disposal problems. It has been common practice for many years to dispose of certain kinds of wastes by underground injection, presumably into formations not related to potable groundwater. Various toxic materials such as oil, gas, and chemicals have been stored in underground tanks that were subject only to minimal regulation. Increasing use of pesticides and chemical fertilizers in agriculture contributes to contamination of groundwater. And, of course, treatment of human wastes through septic tank systems has been the primary treatment approach outside of large urban areas for many years. The OTA study identified 33 categories of sources that have caused groundwater contamination.

A 1987 report by the Conservation Foundation notes:

Since groundwater contamination usually cannot be seen, the quality of groundwater for most purposes was until recently considered acceptable unless the user could actually taste or smell a problem. For many years the overlying soils were also thought to filter out any contaminants — after all, filtering water through a bed of sand was the traditional method of removing biological and other contaminants from a drinking water supply.⁹

What is the evidence of contamination? In a 1984 report EPA stated that water in 8,000 private, public, and industry wells was considered unusable or degraded due to contamination.¹⁰ A 1981 report by the Council on Environmental Quality reported the closing of hundreds of

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wells between 1978 and 1981 because of toxic chemical contamination.¹¹ In 1984 EPA determined that about ten percent of all existing groundwater supplies for drinking water exceeded EPA drinking water standards for microbiological contaminants.¹² About 30 percent of the rural groundwater systems exceeded microbiological drinking water standards in a 1978-79 survey.¹³

In November 1990 EPA released results of a nationwide survey aimed at measuring the extent of pesticide and nitrate contamination in groundwater.¹⁴ Based on testing of more than 1,300 wells nationwide, EPA concluded that the problems are not yet broadly harmful to human health. Results showed that one to two percent of urban and suburban wells and 2.4 percent of rural wells contain nitrate concentrations above that considered safe. Nitrates were found in 52 percent of the urban and suburban wells and in 57 percent of rural wells. At least one pesticide was found in 10 percent of the urban and suburban wells and in 4 percent of the rural wells.

Is there a crisis in groundwater quality? Clearly not. But there is a problem and that problem can be extremely severe in certain areas. The complexity of the sources and the mechanics of groundwater contamination also pose special problems. Certainly the long term

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value of the resource commands that effective protection be established to prevent and avoid additional contamination to the degree possible.

III. GROUNDWATER ALLOCATION LAW

Rules governing the rights to withdraw and use groundwater can be divided into three categories: those based on the rights of the overlying landowner, those based on appropriation, and those based on creation of a special management area.

A. Overlying Landownership

Several approaches have developed for defining the rights of overlying landowners to develop and use groundwater resources. Discussed here are the absolute ownership rule, the reasonable use rule, and the correlative rights rule.

1. Absolute ownership

Early English cases considering the responsibility of groundwater users to their neighbors held that the overlying landowner has an absolute right to extract groundwater.¹⁵ In part these decisions rested on the "heaven to hell" view of property ownership — that a landowner is entitled to make any use desired of his property. In part they also reflected the lack of

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knowledge about groundwater and an unwillingness to make decisions about effects of groundwater withdrawals without a better understanding of groundwater mechanics.

The basic principles of the absolute ownership rule are: (1) the overlying landowner may withdraw an unlimited quantity of groundwater; (2) he bears no responsibility for any effects these withdrawals may have on adjacent landowners unless he acts maliciously or negligently; (3) there is no limitation on the manner in which the extracted groundwater may be used; (4) and the water may be transported for use on other lands. In essence, absolute ownership is the law of the biggest pump. A neighboring...