NatSec H2O: A federal right to groundwater?

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This guest post was produced during the federal government shutdown that ended on January 25th.  Mariel Murray is a lawyer who has worked in natural resources law and policy at the White House, the Department of Agriculture, and non-profit organizations.

Over half of Americans, including almost everyone in rural areas, use groundwater for drinking and other household uses. Meanwhile, the Department of Defense (DOD) is a major water user, sustaining its 500 installations and 438,000 facilities on more than 28 million acres nationwide. The availability, cost, and quality of water supplies are critical military concerns, and securing stability and certainty is paramount. With the increasing overallocation of national water resources, including groundwater overdraft, and escalating droughts, competition over water will likely intensify. Recent court cases and water adjudications potentially expand federal claims to water, especially groundwater, which the Department of Defense may also be able to use to improve national security and promote water conservation/management around its installations.

What is groundwater? 

Groundwater is the rainwater, snow, and ice that seeps into the earth and fills the empty spaces in the rock or soil. Historically, most western States have assigned surface water rights according to when the water was first used, and eastern States allow people to use water adjoining their properties. On the other hand, States generally do not assign ownership of groundwater; instead, the rights to use groundwater have been developed by law, legal decisions, and through permits. In practice, the difference between groundwater and surface water is hard to distinguish.

In addition, groundwater sources are closely regulated by the federal government, and the federal government can be held liable under certain water-related statutes as well. For example, the federal government protects drinking water supplies under the Safe Drinking Water Act, and the federal government can be liable for groundwater contamination and remediation under the Comprehensive Environmental Response, Compensation, and Liability Act.

A Federal Right to Water?

Courts have ruled that Congress has the right to regulate commerce, including navigable waters. Courts have also ruled that when the federal government reserves public lands for a federal purpose (including Indian reservations), it implicitly reserves the water needed to fulfill the Congressional purposes of the federal reservation. These water rights are often senior in priority to water rights established under state law. This principle is called the Federal Reserved Rights Doctrine.

However, this federal jurisdiction is not unlimited- in 1952, Congress passed the McCarran Amendment, which stated that water allocation on federal lands was subject to laws and processes of States. Therefore, any federal agency claiming a federal reserved water right must participate in the State’s water adjudication process, if applicable. 

A Federal Right to Groundwater?

The McCarran Amendment spurred litigation regarding the existence and quantity of federal reserved water rights held for national parks, national forests, national wildlife refuges, and other federal lands. These cases established that federal reserved water rights may only include the minimum amount of water necessary to meet the primary purpose for which the reservation/federal land was established. However, it was unclear whether the Supreme Court held that the reserved right extended to groundwater, as there was a split among the lower courts.

In 2017, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of applying the Federal Reserved Rights Doctrine to groundwater. The Coachella Valley Groundwater Basin of California supplies water to 400,000 people living in nine cities, and 66,000 acres of farmland; with such high demand, the aquifer has been overdrafted for decades. The Agua Caliente band of Cahuilla Indians, whose reservation lies within the basin, sued the basin water agencies, asserting both aboriginal and reserved rights to the groundwater, and requested that the court quantify its rights and enjoin the water agencies from interfering with those rights.

The Court ultimately upheld the rights of the Tribe to the groundwater beneath their reservation because of the purpose for which the reservation was created. The Supreme Court declined to hear the case, and therefore the case remains ongoing at the district court, with the next phase of litigation addressing the quantification of the Tribe’s reserved water right. This case could be an important precedent for other federal agencies like DOD to use in state adjudications and litigation around groundwater.

In lieu of, or in addition to, making a Federal Reserved Rights claim, DOD can also claim a National Defense/National Security water right. In 1995, the State Engineer of Nevada began a water adjudication process for the Las Vegas Artesian Basin, which included the Nellis Air Force Base. The U.S. Air Force (USAF) filed a federal reserved rights claim to some of the water in the area. In the final settlement, the State Engineer agreed not to issue a final ruling on the applicability of the Federal Reserved Rights doctrine, and instead recognized a new National Defense/National Security water right. This new right would be available after the USAF had exhausted its other existing water rights, and provided the Base with a stable water supply which could be used “to support all operations and activities” at the base. The settlement also required the USAF to “utilize reasonable efforts to develop water conservation and well management plans,” implying that this new type of water right would not be unlimited.   For example, DOD has focused on proactively working with communities collaboratively to conserve water and other natural resources through programs like Readiness and Environmental Protection Integration and Joint Land Use Planning processes.

Other military bases and installations may consider raising this claim in other water adjudications.  This could become a highly contentious issue, and States and their Congressional representatives are likely to push back.  For example, Congress has already signaled its intention to prevent at least the Departments of Agriculture and Interior from exercising the federal reserved rights doctrine regarding groundwater in recent draft legislation (S.1230 and H.R. 2939- Water Rights Protection Act of 2017). Nonetheless, if necessary, DOD may be able to take advantage of the federal reserved rights doctrine to claim groundwater around its installations to improve national security. I believe DOD will continue to leverage its collaborative programs rather than resorting to litigation.