Guest Post: Recognizing Federally Reserved Groundwater Rights

Federally reserved water rights are a major issue in the West, and beginning to emerge in disputes and policy issues in the Great Lakes region.  While federally reserved water rights are well established for surface waters, courts and states are split on their applicability to groundwater.  Carlin Danz, a former water law student and research assistant at the University of Michigan Law School, has prepared an excellent analysis of the debate over recognizing federally reserved groundwater rights.  He concludes that courts should recognize federally reserved groundwater rights for numerous legal, policy, justice, and scientific reasons.  Here’s his guest post with a link to his full paper:

When the federal government explicitly reserves land from the public domain, it implicitly reserves sufficient water to fulfill the purpose of that reservation.  This statement of law is known as the federally reserved rights doctrine and commonly called the Winters doctrine based on the leading precedent, Winters v. United States.

Traditionally, reserved rights have only been asserted for surface water.  However, groundwater should also be made available to federal reservations in order to satisfy their needs.  This is logical for a variety of reasons.  It is widely acknowledged that groundwater and surface water are hydrologically interrelated.  Further, groundwater is often more economical, more readily available, and of higher quality than surface water.

The majority of courts that have directly addressed the scope of reserved rights have recognized that the doctrine encompasses both surface water and groundwater.  Yet, despite the judicial trend toward comprehensive recognition, the Supreme Court has not seen fit to decide this issue with finality.
Without guidance from the Supreme Court, state supreme courts will continue to split on the issue of recognizing reserved rights in groundwater.   Until the scope of reserved rights is conclusively delineated, federal reservations will receive inadequate and uneven protection under the law, and reserved rights will remain one of water law’s most contentious issues.

This paper (free download here) examines the judicial history of the federally reserved rights doctrine.  It also enumerate arguments for (and against) the recognition of groundwater in reserved rights.  I conclude with the assertion that the Supreme Court must recognize reserved rights in groundwater for the economical, efficient, and just disposition of water resources in the United States.