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Full-Text Articles in Water Law
Groundwater Exceptionalism: The Disconnect Between Law And Science, Christine A. Klein
Groundwater Exceptionalism: The Disconnect Between Law And Science, Christine A. Klein
UF Law Faculty Publications
Most judges, legislators, and regulators would be hard-pressed to articulate a comprehensive legal theory of groundwater. And yet, this under-appreciated, over-used, life-sustaining resource plays an increasingly pivotal role in prominent legal controversies. In defiance of hydrologic reality, lawmakers have routinely singled out groundwater for unique treatment and decoupled it from surface water. This Article dubs such phenomenon “groundwater exceptionalism,” and identifies groundwater as an under-theorized aspect of both property law and water law. It brings to light the numerous legal doctrines infected by exceptionalism, including state water rights law, the federal reserved rights doctrine, the apportionment of interstate waters, and …
Owning Groundwater: The Example Of Mississippi V. Tennessee, Christine A. Klein
Owning Groundwater: The Example Of Mississippi V. Tennessee, Christine A. Klein
UF Law Faculty Publications
In Mississippi v. Tennessee, a case currently on the U.S. Supreme Court’s docket, Mississippi claims that it owns all groundwater stored underneath its borders that does not cross into Tennessee under “natural predevelopment” conditions—before the advent of modern well technology. Mississippi seeks more than six hundred million dollars for pumping by Tennessee wells that tap into a geologic formation that underlies both states. This is a remarkable claim that departs from the almost uniformly established proposition that the states do not “own” the water within their borders, but instead are authorized to manage that water for the “use” of …