Windmill, cc C.K. Hartman
The windmill, using wind to pump water from the ground, is an iconic image of the American west. But the question of the cumulative effect of a bunch of little wells – these days often out behind tract homes powered by electricity rather than the wind – has become one of the central arguments in western water law and policy.
Here in New Mexico, we’ve long recognized in the law the connection between surface and ground water – the idea groundwater pumping eventually creates a great sucking in the surface water supply. But our state court of appeals recently ruled that domestic wells are OK, that regulations essentially exempting them from water rights regimes did not violate our state constitution’s doctrine of prior appropriation.
Montana was late to legally recognize the groundwater-surface water connection, and as Laura Lundquist writes, the domestic well exemption is a huge issue:
It wasn’t until 2006 that Montana acknowledged the connection between surface and groundwater. The state Supreme Court ruled in Montana Trout Unlimited v. DNRC that the state Department of Natural Resources and Conservation was wrong to permit new large wells in a river basin where people were already banned from making new surface water claims .
The ruling acknowledged for the first time in Montana that taking water from below the ground is the same as taking it from above.
The ruling applies to closed basins: areas where the state must confirm the total amount of water already claimed before the state Legislature will allow any new claims to be filed. Such is the case in the Bitterroot River basin where no new surface rights are available and getting a groundwater right isn’t impossible but now it is a lot more difficult.
But small domestic wells are exempt from water rights requirements so new small wells are allowed even in closed basins where water is at a premium. Developers take advantage of that.
Great post. Here’s a link to my blog that visually depicts what Laura (a friend of mine) describes above.
http://activelymovingwater.com/?p=73
not to worry. In California the legal doctrine is incomprehensible, inexplicable and inconsistent. But we’re still a Top 10 or so global economy.
Excuse my ignorance here; I don’t have a good intuition of the volumes involved. Is the issue that the water is so limited it cannot support the expected number of domestic wells times “reasonable” usage volumes? Or is that developers are exploiting the exemption to create more than the expected number of windmill wells and/or drawing too much water and the amounts can’t be regulated? I.e. are you talking about genuine shortage or exploitation?
Malcolm –
It can be one or the other or both, depending on the situation.
In some areas (such as the Mimbres River in New Mexico, which triggered the litigation here), river users claim the pumping from domestic wells is actually reducing the flows in the river – essentially depriving the river users, who are farmers, of their water rights.
In other areas, there is no clarity on how much water is being pumped from the unregulated wells (that is the case here in the Albuquerque metro area) so no one can be sure whether the pumping is having an effect on other water rights holders.
@Chris — damn. I was going to add this link to your photo: http://www.aguanomics.com/2010/05/groundwater-marketing-everywhere-and.html
@Francis — “Despite this stupidity, California still manages to stay in the Top 10 or so global economy.” FTFY 🙂