Schroeder Law Offices P.C.1
DOMESTIC GROUNDWATER EXEMPT USES Competing Nonexempt and Exempt Uses Put Pressure on Existing Water Rights in the Western States
Will the Right for Water for Human Consumption Trump the Prior Appropriations Doctrine?
Introduction
In the western United States, the legal regimes used to allocate underground water are under pressure. The Prior Appropriation Doctrine is the dominant guiding theory for the administration of water use. The doctrine regulates disputes between water users when there is scarcity of water on a "first in time, first in right" basis. Under state water codes, would-be appropriators are required to obtain a permit for water use prior to withdrawal of groundwater. However, many domestic uses of groundwater are declared exempt from usual water right permitting requirements under the states' statutory water codes. The potential for conflicts between permitted rights and exempt rights has resulted in efforts by the states to limit the drilling and use of exempt wells. This presentation will address current trends in western water law impacting the administration of groundwater and how the national and state constitutional "Rights to Life" and the international recognition of the "Human Right to Water" may impede the states' efforts to limit or eliminate domestic exempt groundwater uses.
Methods and Materials
This presentation will explore 1) the current state of exempt domestic uses of groundwater in a number of the western states; 2) the strategies each state uses for resolving disputes between permitted users and exempt users under the Prior Appropriations Doctrine; and 3) the trends in western water law stemming from demographic shifts, changes in types of water uses, and the effects on groundwater resources. The states' efforts to limit or eliminate exempt uses will then be examined in light of national and state constitutional rights as well as current international human rights. The impact of national and state constitutional provisions regarding the "Right to Life" and international conventions, including the "Human Right to Water" will be addressed as a means of potentially limiting the states' ability to alter new and existing domestic exempt uses.
Results and Discussion
Modern statutory codification of the Prior Appropriation Doctrine requires would-be appropriators to obtain a permit for water use prior to any diversion or withdrawal for water. The doctrine creates a hierarchal system of system of senior and junior users. When resources are limited, those with senior priority rights may claim the right to use the available water to the exclusion of the junior users. However, a longstanding tradition to this doctrine is the exemption from usual permitting requirements for certain domestic uses of groundwater. Each of the states has its own regulatory requirements for exempt domestic uses and approaches for dealing with conflicts that may arise from competing uses.
However, as the use of groundwater has increased and a number of groundwater basins have become overdrawn, the states have begun to recognize that continued withdrawals are not sustainable. They have also recognized that exempt domestic groundwater uses create a potentially significant loophole with regard to restricting groundwater appropriations. Significantly, there are more than a million exempt domestic wells in the West and tens of thousands more being drilled each year. Challenges to the constitutionality of these rights have been raised and states have moved forward with efforts to regulate exemptions, particularly in situations involving designated areas.
Those concerned with the states' efforts to curtail or eliminate exempt domestic uses have argued that these efforts to restrict access to water for human needs run counter to state and national constitutions rights, which protect the citizens' "Right to Life," as well as the internationally recognized "Human Right to Water." The United States grants all its citizens the "Right to Life" through the Bill of Rights. A number of state constitutions also provide for a "Right to Life." At a most basic level, this right provides that citizens have the right to sustain their own life. Because domestic use of water is essential for life, domestic uses could be held to be protected by the United States Constitution as well as individual states' constitutions.
Further, the international community has recognized a "Human Right to Water." In 1948 the United Nations passed the Universal Declaration of Human Rights, which declared that everyone has the right to life, liberty and security of person and everyone has the right to a standard of living adequate for health and well-being. In 2000, the United Nations Committee on Economic, Social and Cultural Rights declared safe drinking water to be essential to a person's right to health. In 2010, the United Nations adopted a resolution on the Human Right to Water and Sanitation recognizing the right to safe and clean drinking water and sanitation as a human right.
Given that many individuals in the western states, particularly those in rural areas, rely exclusively on exempt domestic wells for their source of water, it is questionable whether states can deny the use of a public resource on one's land when such resource is necessary to sustain life.
Conclusion
Fear of a domestic exempt well explosion and dwindling groundwater resource as well as the potential for conflicts between senior appropriator rights and exempt domestic water users have driven some western states to seek regulations limiting of the use of exempt domestic wells. However, efforts on the part of the states to reign in the ability of citizens to develop access to water through exempt domestic wells may run afoul of legal constraints in the form of the United States' and states' constitutional "Rights to Life," which implicitly would include the right to safe drinking water, and the internationally recognized "Human Right to Water." Resolution of these potentially conflicting legal principles may preclude states from moving forward on this regulatory front to limit negative impacts on permitted water users' rights.