The Western Common Law of Tributary Groundwater: Implications for Nebraska

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 541. The Western Common Law of Tributary Groundwater: Implications for Nebraska

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J. David Aiken*

The Western Common Law of Tributary Groundwater: Implications for Nebraska(fn1)

TABLE OF CONTENTS

I. Introduction ....................................................... 542
II. Hydrologic and Water Use Fundamentals ............................. 543
A. Surface Water Law Fundamentals ................................. 543
B. The Nature of the Groundwater Resource ......................... 544
C. Groundwater Law Fundamentals ................................... 546
1. Legal Classifications of Groundwater ........................ 547
2. Overlying Rights Theories ................................... 548
3. Prior Appropriation ......................................... 549
III. Early English Decisions .......................................... 550
A. Acton v. Blundell ............................................ 550
B. Dickinson v. Grand Junction Canal Co ......................... 552
C. Chasemore v. Richards ........................................ 554
IV. Selected Early Eastern State
Decisions ......................................................... 557
A. Absolute Ownership Decisions ................................... 557
B. American Rule of Reasonable Use ................................ 558
V. Selected Western State Tributary Groundwater
Decisions .......................................................... 564
A. Early Decisions ................................................ 565
B. California and Correlative Rights .............................. 567
C. Arizona and Reasonable Use ..................................... 573
D. Prior Appropriation ............................................ 574
E. Texas and Absolute Ownership ................................... 578
F. Conclusions .................................................... 579
VI. The Emerging Nebraska Law of Tributary
Groundwater ....................................................... 579
A. Reasonable Use ................................................. 580

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B. Rejection of the Subflow Doctrine? The MUD
Decision ....................................................... 581
C. New Directions in Nebraska Water Policy ........................ 585
D. External Pressures ............................................. 586
E. Spear T Litigation ........................................... 591
VII. Conclusion ....................................................... 595

I. INTRODUCTION

First, all water is interrelated and interdependent. If groundwater were red, most streams would be various shades of pink; if groundwater were poisoned, the streams would also be poisoned.(fn2)

I find it curious that although regulation of surface waters is properly a responsibility of the State, groundwater regulation is somehow viewed as a "local" concern. . . . The result is uncoordinated administration of interrelatedresources.(fn3)

Nebraska water law is on a collision course with reality. For decades Nebraska judges and water policy makers have ignored the hydrologic connection between surface water and tributary groundwater, the groundwater that provides the stream' base flow. External events, including federal endangered species requirements and the Republican River Basin Compact litigation, are forcing Nebraska water policymakers to acknowledge and begin dealing with interrelated surface water and groundwater. Pending litigation between competing surface water and groundwater irrigators in the North Platte River basin will also force the Nebraska Supreme Court to reconsider its 1966 decision that hydrologically interrelated surface water and groundwater supplies need not be legally interrelated. The plaintiff asserts that groundwater irrigators are pumping tributary groundwater, preventing it from reaching the stream, and drying up his surface water irrigation rights.

The basic premise of this Article is that the use of tributary groundwater must be integrated into surface water law. Tributary groundwater is a major contributor to the flow of most Nebraska streams.

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Tributary groundwater withdrawals will, in the long run, deplete streamflow on an almost gallonpergallon basis.(fn4) Ultimately, Nebraska must completely integrate and coordinate the law governingtributary groundwater withdrawals with surface water law. Where tributary groundwater withdrawals are significantly depleting streamflows, tributary groundwater withdrawals must be reduced, or appropriations to the depleted streams may need to be purchased or retired, or both. Fortunately, in response to federal and interstate requirements, much of the needed legislative action has been taken. But judicial steps must also be taken to complete the legal framework for integrating tributary groundwater into the appropriation system.

This Article focuses on how western courts have dealt with disputes over interrelated surface water and groundwater. Part II deals with hydrologic dimensions and related water uses. Parts III and IV deal with early groundwater and tributary groundwater decisions of English courts and American courts in eastern states. Part V deals with selected groundwater and tributary groundwater decisions from western states. Part VI deals with the evolving Nebraska law which regulates conflicts over the use of interrelated surface water and groundwater.

II. HYDROLOGIC AND WATER USE FUNDAMENTALS

A. Surface Water Law Fundamentals

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Because it is impossible to escape legal concepts even when discussing hydrologic principles, a brief lesson in surface water law terminology is needed. At common law, surface water rights are based on the riparian rights doctrine: only owners of land bordering the stream (riparian land) are entitled to use streamflow. Under the older natural flow doctrine, water could be diverted only for domestic purposes, so that downstream riparians would have the benefit of the streamflow to turn their mill wheels. The natural flow doctrine was replaced by the reasonable use doctrine, which allows significant diversions and requires a comparison of the competing riparian uses when shortages occur.(fn5) The major surface water law doctrine in the West is prior appropriation. Under the prior appropriation doctrine,

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water rights are acquired, not as an incident of land ownership, but by diverting water from a stream for beneficial use. Conflicts are generally resolved on the basis of priority: the earliest or senior appropriator has a better right over subsequent or junior appropriators. In its modern version, appropriative water rights are acquired by applying to the state water administrator, traditionally referred to as the State Engineer. Priority is established when the application is received by the State Engineer, and is "perfected" (completed) when water is ultimately used. In some western states, senior appropriators may request priority administration from the State Engineer by placing a priority call. The State Engineer' office will shut off diversions by sufficient upstream junior appropriators until there is sufficient streamflow for the senior.(fn6)

B. The Nature of the Groundwater Resource(fn7)

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Both surface water (the water in lakes, rivers and streams) and groundwater (the water stored in groundwater reservoirs called aquifers) are ultimately derived from precipitation. Rainfall and melting snow form overland runoff, a significant source of streamflow. Some precipitation soaks into the ground, slowly moving laterally until it either drains into a stream, or percolates downward, where it becomes part of the groundwater aquifer. The process of groundwater storage is slow, since, in the West, natural recharge is only a few acreinches(fn8) per year. When the storage capacity of an aquifer is reached, ground

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water may be discharged into a stream.(fn9) This equilibrium condition may be changed by groundwater development. When groundwater withdrawals exceed recharge the balance is taken from the groundwater stored in the aquifer, reducing aquifer discharge.

Groundwater and surface water are often are hydrologically interrelated. Streamflow may recharge alluvial aquifers. These streams are called losing streams, because they lose water to the aquifer. Similarly, groundwater discharge forms the base flow of a stream, i.e., a stream' flow when overland runoff is negligible. These streams are called gaining streams because they gain water from the aquifer. Intermittent streams, those that have little or no base flow, have streamflow only after it has rained or snow has melted. Perennial streams have significant base flow, and usually have streamflow most if not all of the year.(fn10)

Groundwater and surface water have significantly different physical characteristics. One difference that is important in dealing with interconnected surface water and groundwater supplies is the differences in surface water flow and tributary groundwater flow. In Nebraska, for example, streamflow may be twentyfive miles a day or more, whereas groundwater flow may be 300 feet per year.(fn11) This difference is significant in resolving water user conflicts. Closing a junior surface appropriator' headgate will usually increase the water supply of a downstream senior appropriator, but stopping a junior appropriator' wellpumping will not necessarily improve the supply to the senior well in a timely fashion.(fn12)

The fundamental issue is that much of the groundwater pumping in Nebraska (and in the West) involves the pumping of tributary

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groundwater without regard to its future impact on streamflow.(fn13) The longterm impact of this will be to turn gaining streams into losing streams, and perennial streams into intermittent streams.(fn14)

C. Groundwater Law Fundamentals(fn15)

In the West, groundwater...