The Ogallala Aquifer
By Sarah Harris
I. INTRODUCTION (GROUNDWATER AND AQUIFERS)
An aquifer is a vast underground source of water-bearing permeable rock or
unconsolidated materials (gravel, sand, silt, or clay) from which groundwater can be usefully
extracted using a water-well.1 Groundwater can be found at nearly every point in the earth’s
shallow subsurface, to some degree. Groundwater comes from rain and snowmelt that seeps into
the ground, the gravity then pulls the water down through cracks in rocks or the spaces between
particles of soil.2 Eventually the water will reach a depth where all the openings in soil or rock
are filled with water; this is called the saturated zone (also called the aeration), where there are
pockets of air with some water that can be replaced by water.3
There are two types of aquifers, confined and unconfined. Unconfined aquifers are
sometimes called water table or phreatic aquifers, because their upper boundary is the water table
or phreatic surface.4 Typically, the shallowest aquifer at a given location is unconfined, meaning
it does not have a confining layer (an aquitard or aquiclude) between it and the surface.5
Unconfined aquifers usually receive recharge water directly from the surface, from precipitation
or from a body of surface water (e.g., a river, stream, or lake) which is in hydraulic connection
1
Kevin F. Dennehy, 2000, High Plains Regional Ground-Water Study: U.S. Geological Survey Facts Sheet FS-09100, 6 p. available at http://co.water.usgs.gov/nawqa/hpgw/factsheets/DENNEHYFS1.html (last visited Oct. 14,
2008).
2
Lyle Raymond, Jr., July 1988, Groundwater and Aquifers: Cornell Cooperative Extension, Cornell University,
available at http://groundwater.oregonstate.edu/under/aquifer (last visited Oct. 18, 2008).
3
Id.
4
National Ground Water Association: Unconfined or Water Table Aquifers, 1999 NGWA Press Publication, Ch. 14,
Ground Water Hydrology for Water Well Contractors, available at
http://www.ngwa.org/public/gwbasics/unconfined_aquifers.aspx (last visited Oct. 18, 2008).
5
Id.
with it.6 Groundwater below a layer of solid rock or clay is said to be in a confined aquifer.7
Confined aquifers have the water table above their upper boundary (an aquitard or aquiclude),
and are typically found below unconfined aquifers. The term “perched” refers to ground water
accumulating above a low-permeability unit or strata, such as a clay layer. This term is generally
used to refer to a small local area of ground water that occurs at an elevation higher than a
regionally-extensive aquifer.
This Article considers the Ogallala aquifer history and formation of the Ogallala and the
best ways to conserve and regulate the depletion of the ground water in the High Plains region.
Part II discusses the aquifers importance, formation and history, along with the economic
impacts and population changes in the Ogallala. Part III addresses the Ogallala aquifers water
balance, the recharge and discharge. Ground water quality and the effects of pollution and
global warming are also addressed in this section. Part IV considers the different conservation
techniques that have been applied and are still in the process of being applied to slow the
depletion of the aquifer. Part V deals with the water regulations of different states and the
federal government. These Doctrines are examined to determine the best regulations to be used
as a whole in the Ogallala region. Part VI concludes that there are many different ways to go
about conserving and regulating the Ogallala, and we need to continue conserving the water we
can so future generations can also use the Ogallala Aquifer.
II. THE OGALLALA AQUIFER
Aquifers are underground geological formations made up of rock, soil, and sand that
holds water like a sponge in its cracks and spaces. The Ogallala Aquifer of the central United
6
7
Id.
Raymond, supra note 2.
States is one of the world’s great aquifers. In places it is being rapidly depleted by growing
population use, and continuing agricultural use.8 This aquifer underlies portions of eight states
and contains primarily fossil water from the time of the last glaciations.9 Fossil water is
groundwater that has remained in an aquifer for millennia.10 This water can rest underground in
aquifers for thousands or even millions of years. This occurs when geologic changes seal the
aquifer off from further “recharge,” the water becomes trapped inside the earth’s surface and
then becomes known as fossil water.11 The annual recharge, in the more arid portions of the
aquifer, is estimated to total only about ten percent of its annual withdrawals.12
A. Why are Aquifers Important
Humans often use the ground water in aquifers for their fresh water needs. The main
uses of ground water include irrigation, drinking water and other public uses, and for supplying
domestic water to people who do not receive public-supply water.13 The majority of water used
for self-supplied domestic and livestock purposes came from groundwater sources.14 Of all the
water used in the United States in 2000, about (408 billion gallons per day (Bgal/d) is fresh and
saline water) 21 percent (69.8 Bgal/d) came from groundwater sources.15 Water from surface
water sources accounted for the remaining 79 percent.16 Very little saline groundwater was used
8
David McConnell, Aug. 2000, The Good Earth: Groundwater & Wetlands; High Plains Aquifer Ch. 11, The
McGraw-Hill Company, available at http://www.mhhe.com/earthsci/geology/mcconnell/demo/hpaq.htm (last
visited Oct. 18, 2008).
9
Id.
10
Id.
11
Raymond, supra note 2.
12
Raymond, supra note 2.
13
Christine McMichael, U.S. Geological Survey, Freshwater, (Published in the Encyclopedia of Earth September
25, 2008), available at http://www.eoearth.org/article/Freshwater.
14
Id.
15
Id.
16
Id.
in 2000. Almost 99 percent of ground water came from freshwater aquifers.17 Groundwater is
also very important as it supplies springs, and much of the water in our ponds, marshland,
swamps, streams, rivers and bays.
B. Size and Water Formation
The Ogallala Aquifer, also known as the High Plains Aquifer, is a vast yet shallow
underground water table aquifer located beneath the Great Plains in the United States. It lies
under about 174,000 square miles that extends through parts of South Dakota, Nebraska,
Wyoming, Colorado, Kansas, Oklahoma, New Mexico, and Texas.18 It was named in 1898 by
N.H. Darton, a geologist, for its location near Ogallala, Nebraska.19 Around 27 percent of the
irrigated land in the United States overlies the Ogallala Aquifer and about 30 percent of the
ground water used for irrigation in the Nation is withdrawn from the aquifer.20 The aquifer also
provides drinking water to 82 percent of the people who live within the aquifers boundary.21
C. History of the Ogallala
The Ogallala is made up of primarily unconsolidated or partly consolidated gravel, sand,
silt, or poorly sorted clay of Tertiary or Quaternary age, with groundwater filling the spaces
between the particles below the water table.22 The Ogallala formation began 10 to 12 million
years ago during late Tertiary (Miocene/Pliocene) geologic time.23 Sand, gravel, silt and clay
17
Id.
Dennehy, supra note 1, at 6.
19
North Plains Groundwater Conservation District, Ogallala Aquifer, available at
http://www.npwd.org/Ogallala.htm (last visited Oct. 14, 2008).
20
Dennehy, supra note 1, at 6.
21
Dennehy, supra note 1, at 6.
22
David E. Kromm, Ogallala Aquifer: Water Encyclopedia Science and Issues, available at
http://www.waterencyclopedia.com/Oc-Po/Ogallala-Aquifer.html, (last visited Oct. 19 2008).
23
High Plains Underground Water Conservation District No. 1, The Ogallala Aquifer, July 2005, available at
http://www.hpwd.com/the_ogallala.asp (last updated April 2, 2007).
18
eroded from upland areas were they were deposited over the erosional land surface of the
present-day High Plains by eastward flowing streams.24 The sediments got deposited on low hill
surfaces, relatively shallow valleys, and meandering streams.25 These sediments eventually
covered the entire area of the present-day aquifer forming the Ogallala Formation.26 Because of
the way the land surface was buried, the Ogallala Formation is thicker where the sediments filled
the old stream channels and thinner where hills or upland areas were buried.27 The Ogallala
Formation consists mostly of coarse sedimentary rocks in its lower sections, which grade upward
into finer-grained lithologies.28
Early settlers in the semi-arid High plains were plagued by crop failures due to cycles of
drought.29 The aquifer was first tapped in 1911 when a farmer dug a well by hand for irrigation
purposes. Shortly after its discovery in the 1930’s pumping began and increased substantially
after World War II, when pumping technology became more affordable and available to
irrigate.30 The High Plains annual rainfall is 16 to 28 inches per year and before the irrigation
technologies it was not a desirable place for anything more than dry-land agriculture. The dust
bowl in the 1930’s scared most farmers into believing that irrigation was a more reliable way to
sustain their crops. The High Plains was then transformed into one of the most agriculturally
productive regions in the world.31
In the 1970’s fuel became more expensive and it became expensive to pump and irrigate
crops. This resulted in a drop in irrigation and more cost-effective and conservation minded
24
Id.
Id.
26
North Plains Groundwater Conservation District, supra note 19.
27
The Ogallala Aquifer, supra note 23.
28
North Plains Groundwater Conservation District, supra note 19.
29
Jeffrey M. Peterson, Thomas L. Marsh, & Jeffery R. Williams, Conserving the Ogallala Aquifer: Efficiency,
Equity, and Moral Motives, Choices, First Quarter Feb. 2003, 15-18, available at
http://www.choicesmagazine.org/2003-1/2003-1-04.htm.
30
Id. at 15.
31
Id.
25
irrigation in the 1980s. Farmers discovered the “less is more” approach; they realized that
beyond a certain point, irrigation fails to boost profits or warrant depletion of a non-renewable
resource. There are currently about 120,000 wells drawing water from the aquifer, 50,000 fewer
than at the pumping peak.
D. Economic and Agriculture Impacts
Water-level declines began in parts of the Ogallala Aquifer soon after the beginning of
extensive ground-water irrigation.32 The Ogallala Aquifer water supply development program
began in the 1960’s and continued through the 1970’s with flood irrigation then later advanced to
new upgrades.33 With the invention of the center pivot sprinkler, additional land that could not
irrigated through flood irrigation was now able to be irrigated.34 Since the late 1970’s the
number of irrigated acres within the Ogallala aquifer have increased to nearly 600,000 acres.35
The Ogallala Aquifer is the single most important source of water in the High Plains
region, providing nearly all the water for residential, industrial, and agricultural use.36 State
water planners estimate 5 percent of the water pulled from deep within the Ogallala aquifer will
find its way into dairies, feedlots and range operations.37 Another 6 percent will spill from city
taps throughout the region and industrial and electrical users will use 4 percent of the total use.38
32
V.L. McGuire, 2007, Water-Level Changes in the High Plains Aquifer, Predevelopment to 2005 and 2003 to 2005:
U.S. Geological Survey Scientific Investigations Report 2006-5324, 7 p.
33
High Plains Aquifer and Republican River Basin Water Supply Plan: South Platte Resources, LLC, available at
http://www.southplatteresources.com/Facts.htm (last visited Oct. 4 2008).
34
Id.
35
Id.
36
Kromm, supra note 22.
37
Elliott Blackburn, Jan. 27 2008, Groundwater rules could impact industries, residents alike, AVALANCHEJOURNAL, available at http://www.southplatteresources.com/Facts.htm.
38
Id.
Nearly 84 percent of the total water use will nourish the irrigated cash crops in the region such as
corn and cotton.39
Because of widespread irrigation, farming accounts for 94 percent of the
groundwater use in the United States, irrigated agriculture forms the base
of the regional economy. It supports nearly one-fifth of the wheat, corn,
cotton, and cattle produced in the United States. Crops provide grains
and hay for confined feeding of cattle and hogs and for dairies; these cattle
feedlots support a large meatpacking industry.40
Farmers who tapped the Ogallala for their cotton crop in 2005 produced 40 percent more bales,
than the state’s total production for that year.41 Generally irrigated fields yield two to three times
the cotton than from fields that rely on their moisture from the skies.42 Without irrigation from
the Ogallala Aquifer, there would be a much smaller regional population and far less economic
activity. The area overlying the aquifer became one of the major agricultural regions in the
world.43 In addition to the change from dry-land agriculture to a combination of dry and
irrigated agriculture, a variety of businesses were developed to support the agriculture production
and the economy, causing the area to dramatically change.44
Between the 1940’s and 1980’s counties in the region experienced population increases
in areas of intense irrigation while most other counties had population declines.45 Thirty percent
of all irrigation water pumped in the United States during 1987 was pumped in the Ogallala
region and 37.4% of the Ogallala’s cropland was irrigated.46 The High Plains is the leading
39
Id.
Kromm, supra note 22.
41
Blackburn, supra note 37.
42
Blackburn, supra note 37.
43
McGuire, Water-Level Changes in the High Plains Aquifer, Predevelopment to 2005 and 2003 to 2005, supra
note 32, at 1.
44
High Plains Aquifer and Republican River Basin Water Supply Plan, supra note 33.
45
Stephen E. White, 1992, Population Change in the High Plains Ogallala Region: 1980-1990, Great Plains
Research: A Journal of Natural and Social Sciences, Vol. 2, No. 2, 179-197, at 183, available at
http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1070&context=greatplainsresearch.
46
Id.
40
irrigation area in the Western Hemisphere.47 Overall, 5.5 million hectares (nearly 13.6 million
acres) are irrigated in the Ogallala region.48 As of 2006 over 170,000 wells are tapped into this
natural resource which contributes to the irrigation of some 500,000 sq. kilometers of farmland,
making the Ogallala the largest irrigation-sustained cropland in the world.49 Agriculture from
South Dakota to Texas has been supported solely by irrigation from the High Plains aquifer for
nearly a century.50 The states with the highest withdrawal rate in irrigation from the Ogallala are
Nebraska (46%), followed by Texas (30%) and Kansas (14%).51
E. Population Change
The Ogallala has been one of the main causes of population growth in the High Plains
region. Before pumping from the aquifer began in the 1930s and 1940s, there had been a
population decline in the region due to environmental factors such as droughts.52 Since
groundwater mining began, population increased in relation to the amount of water areas have
available to pump.53 While there has been a substantial trend of population to move to more
urbanized locations, there has also been a strong movement and concentration to rural places
with high amounts of groundwater.54
47
Kromm, supra note 22.
Kromm, supra note 22.
49
Tyler Ringler, 2006, The High Plains Aquifer System, Introduction to Hydrogeology, available at
http://academic.emporia.edu/schulmem/hydro/TERM%20PROJECTS/Ringler/HPA%20system%20web%20page.ht
m (last visited Oct. 28, 2008).
50
Id.
51
Kromm, supra note 22.
52
Stephen E. White, March 1994, Ogallala oases: water use, population redistribution, and policy implications in
the high plains of western Kansas, 1980-1990, (ANNALS OF THE ASSOCIATION OF AMERICAN
GEOGRAPHERS 84(1):29-45).
53
Id.
54
Id.
48
III. AQUIFER WATER BALANCE (DEPLETION)
A. Discharge and Recharge
An aquifer is a groundwater storage reservoir in the water cycle, and while groundwater
is a renewable source, reserves replenish relatively slowly. Water-level changes in the aquifer
result from an imbalance between discharge and recharge. Discharge is primarily groundwater
withdrawals for irrigation, but discharge also includes evapo-transpiration, where the water table
intersects the land surface, and seepage to streams and springs occurs.55 Around 95 percent of
the water pumped from the Ogallala is for irrigation.56 The regions overlying the Ogallala
aquifer are some of the most productive regions for ranching, and growing corn, wheat and
soybeans in the United States; and these areas heavily depend on pumping ground water for
irrigation.57
Early settlers of the semi-arid High Plains were plagued by crop failures due to cycles of
drought.58 By 1915, there were over 10,000 wells drilled into the aquifer in South Dakota.59 The
aquifer was first tapped for irrigation in the early 1900’s and began large scale pumping after
WWII when affordable technology became available.60
The Ogallala was once thought to be
inexhaustible, but because the rate of extraction is exceeding the rate of recharge, water levels
are decreasing.61 The aquifers water table has dropped 10-50 feet in depth in some regions, with
55
McGuire, Water-Level Changes in the High Plains Aquifer, Predevelopment to 2005 and 2003 to 2005, supra
note 32, at 1.
56
The Ogallala Aquifer, supra note 23.
57
Dennehy, supra note 1, at 6.
58
McConnell, supra note 8.
59
McConnell, supra note 8.
60
McConnell, supra note 8.
61
The Ogallala Aquifer, supra note 23.
several recorded drops of over 100 feet since the increase of groundwater mining in the last
century.62
The Ogallala aquifer naturally recharges through the percolation of precipitation through
the soils and underlying sediments to the water table, playa lakes are the primary points of most
natural recharge.63 Much of the plains region is semi-arid with steady winds that hasten
evaporation of surface water and precipitation.64 Most precipitation is transpired by vegetation
or lost to evaporation from the soil before it can percolate to the water table and recharge the
aquifer.65
The aquifer in many locations is overlain with a shallow layer of caliche that is
practically impermeable; this limits the amount of water able to recharge the aquifer from the
land surface.66 The playa lakes soil is different it is not lined with caliche, making these few
areas where the aquifer can recharge.67 The destruction of these by farming and development
decrease the available recharge area.68 Studies have estimated an average recharge rate for the
entire High Plains region of approximately 0.5 of an inch per year.69 Increased efficiency in
irrigation continues to slow the rate of water level decline.70 Because of the wide use of
62
Asia-Pacific Economic Corporation HRDWG: The Ogallala Aquifer and Its Role as a Threatened American
Resource, available at
http://hrd.apecwiki.org/index.php/The_Ogallala_Aquifer_and_Its_Role_as_a_Threatened_American_Resource (last
modified Oct. 23, 2008).
63
The Ogallala Aquifer, supra note 23.
64
The Ogallala Aquifer, supra note 23.
65
S. G. Robson & E. R. Banta, 1995, Ground Water Atlas of the United States Arizona, Colorado, New Mexico,
Utah: U. S. Geological Survey HA 730-C, available at http://pubs.usgs.gov/ha/ha730/ch_c/index.html.
66
North Plains Groundwater Conservation District, supra note 19.
67
Peter R. Briere, Playa, playa lake, sabkha: Proposed definitions for old terms, Journal of Arid Environments
(Elsevier) 45 (1): 1-7, (May 2000).
68
Id.
69
The Ogallala Aquifer, supra note 23.
70
Kromm, supra note 22.
irrigation the runoff from irrigating can actually provide a moderate source of the aquifer’s own
recharges.71
Considerable drops in ground water levels have occurred over areas of high stress in the
aquifer.72 Significant drops of up to 60% were seen in extremely dry areas before successful
ground water management took control.73 State governments and local water districts
throughout the region also have developed policies to promote groundwater conservation and
slow or eliminate the expansion of irrigation.74
B. Water-Level Changes
Water levels in the Ogallala aquifer have declined in most places since irrigation
withdrawal became widespread. Irrigation pumping in the Ogallala increased from around 4
million acre-feet in 1949 to nearly 18 million acre-feet in 1980.75 The trend of rapid decline
started slowing in the mid 1970s and by the 1980s a portion of the aquifer in areas began to
stabilize.76 Due to a drought that lasted from 1992 to 1996, agricultural producer’s increased
pumping water for irrigation to supplement precipitation, because of this increase in irrigation,
water levels during this period declined.77 The average area-weighted water level in the High
Plains aquifer declined 3.2 feet from 1980 to 1999 compared to a decline of 9.9 feet from
predevelopment to 1980.78 In 1990, the Ogallala aquifer in the eight-state area contained around
3.270 billion acre-feet of water, 65 percent of which was located under Nebraska.79 Texas
71
Ringler, supra note 49.
Ringler, supra note 49.
73
Ringler, supra note 49.
74
Kromm, supra note 22.
75
The Ogallala Aquifer, supra note 23.
76
The Ogallala Aquifer, supra note 23.
77
The Ogallala Aquifer, supra note 23.
78
McGuire, Water-Level Changes in the High Plains Aquifer, Predevelopment to 2005 and 2003 to 2005, supra
note 32, at 1.
79
The Ogallala Aquifer, supra note 23.
72
contained about 12 percent, Kansas 10 percent, 4 percent was located under Colorado and the
remaining 9 percent was divided among the other four states.80 As of 2007 estimates of the
volume of water in the eight-state Great Plains area was just less than 3 billion acre-feet.81 The
High Plains aquifer declined an average area-weighted water-level of 0.25 feet from 1998 to
1999 based on 1998 and 1999 measurements from 7,847 wells.82 In the High Plains aquifer from
1998 to 1999 the average area-weighted water-level changed from a rise of 1.01 feet in South
Dakota to a decline of 1.49 feet in Texas.83
In the early days of irrigation, little water conservation equipment or technology was
available as a result large amounts of water were lost to evaporation and deep percolation.84
Over the years irrigation technologies evolved to allow agricultural producers to apply water
much more efficiently without waste.85 These technologies came about because of incentives
such as the Environmental Quality Incentives Program (EQIP) and low interest agricultural water
conservation equipment loan programs.86 With the help of these technologies the average water
use efficiency within the High Plains area improved from 50 percent in the mid 1970s to
approximately 75 percent in 1990.87 Currently full drop-line center pivot systems, used in
conjunction with furrow dikes, are about 95 percent efficient, while buried subsurface drip
irrigation lines approach 100 percent efficiency.88
80
The Ogallala Aquifer, supra note 23.
The Ogallala Aquifer, supra note 23.
82
V.L. McGuire, 2001, Water-Level Changes in the High Plains Aquifer, 1980-1999: U.S. Geological Survey Fact
Sheet 029-01, 2 p. at 2.
83
Id.
84
The Ogallala Aquifer, supra note 23.
85
The Ogallala Aquifer, supra note 23; see generally Food and Agriculture Organization of the United Nations
Agriculture and Consumer Protection Department, Improving Irrigation Technology, Spotlight Magazine, Published
March 2003, available at http://www.fao.org/Ag/magazine/0303sp3.htm.
86
The Ogallala Aquifer, supra note 23.
87
The Ogallala Aquifer, supra note 23.
88
The Ogallala Aquifer, supra note 23.
81
The population of nonurban counties declined 8.6% from 340,186 to 310,856 inhabitants
whereas urban counties added 3,179 inhabitants, a 0.2% increase between 1980 and 1990.89
Irrigated agriculture is significantly associated with population change, shown by urban counties
having a greater proportion of irrigated cropland (41.4%) than nonurban counties (26.9%).90
While the total population of the Ogallala region has changed very little
between 1960 and 1990, it’s become more concentrated. Some counties
that are gaining population depend on surrounding counties that may be
simultaneously losing people. The Ogallala region is not experiencing massive
depopulation in the aggregate. Over the past three decades the region has
gained over 87,000 inhabitants, many counties are growing while others are
almost stable. Access to groundwater makes the Ogallala region different
from other portions of the High Plains. At regional level, population increased
slightly between 1970 and 1980 during a time of irrigation expansion. Since
1980, the population has declined slightly during a period of irrigation decline.
Irrigation change and cropland irrigation are both significantly correlated with
population change in urban counties and in the northern and central subareas of the
Ogallala region.91
Interdependency between groundwater exploitation and urbanization is suggested through urban
counties having a greater percentage of cropland under irrigation than nonurban counties.92 The
percentage of the population employed in the agriculture industry is more negatively correlated
with population than the other areas suggesting that the most important factors associated with
growth lie outside agriculture.93
C. Ground water Quality Issues
The High Plains agricultural economy is based on the availability of large quantities of
ground water of a quantity suitable for irrigation and drinking water.94 This ground water is
89
White, Population Change in the High Plains Ogallala Region, supra note 45, at 190.
White, Population Change in the High Plains Ogallala Region, supra note 45, at 191.
91
White, Population Change in the High Plains Ogallala Region, supra note 45, at 193-194.
92
White, Population Change in the High Plains Ogallala Region, supra note 45, at 195.
93
White, Population Change in the High Plains Ogallala Region, supra note 45, at 195.
94
Robson & Banta, supra note 65, at HA 730-C.
90
dependant upon several factors including chemical composition and solubility of aquifer
minerals.95 Most crops can tolerate water with as much as 500 milligrams per liter dissolved
solids and can tolerate water with 500 to 1,500 milligrams per liter or more if the soils are well
drained.96 Ground water samples near a recharge area typically show less amounts of dissolved
solids present due to dilution and a shorter residence time in the aquifer.97 The opposite is true,
ground water near discharge regions show higher dissolved solids due to a longer residence
time.98
The dissolved-solids concentration of water in the aquifer in eastern Colorado
and eastern New Mexico generally is less than 500 milligrams per liter but
exceeds 1,000 milligrams per liter in a small area in Colorado. The area
with large dissolved-solid concentrations north of the Arkansas River is likely
caused by dissolution of gypsum (calcium sulfate) in the Upper Cretaceous
bedrock that underlies the aquifer. The area with large dissolved-solid
concentrations in southeastern New Mexico is likewise due to the effects of
the underlying bedrock. In this area, lower Cretaceous, Jurassic, and
Triassic rocks that underlie the aquifer containing highly mineralized water
that may discharge into and degrade the water quality of the aquifer.99
One of the biggest players in the dissolved particle content around the Kansas-Nebraska region is
sodium; these high concentrations of sodium can negatively affect soil till-ability and
permeability in the area.100 The highest contents can be seen in south-central Kansas where the
Ogallala aquifer overlies Permian bedrock that contains saline water derived from partial
dissolution of salt beds.101
95
Ringler, supra note 49.
Robson & Banta, supra note 65, at HA 730-C.
97
Ringler, supra note 49.
98
Ringler, supra note 49.
99
Robson & Banta, supra note 65, at HA 730-C.
100
Ringler, supra note 49.
101
Ringler, supra note 49.
96
D. Pollution and Global Warming impacts on the Aquifer
Groundwater pollution is becoming more concentrated as more agricultural chemicals
seep into a shrinking reservoir of Ogallala water. The general shallow depth of the Ogallala
aquifer makes it extremely susceptible to run-off contamination.102 While industries are a cause
of contamination, agricultural activities are exceptionally likely to pollute the groundwater,
which then flows into an aquifer which can then be drawn into wells.103 Irrigation doesn’t permit
improvements in water quality before returning to its source; irrigation changes the content of
dissolved salts and adds agricultural chemicals and eroded sediments.104 In typical soil, water is
more saline when it returns to a source after irrigation than prior to an irrigated application.105
Fertilizers containing nitrates that are used on farms, lawns and gardens can seep into
groundwater, and this can be very harmful to pregnant women and children.106
It has in fact been known to cause the “blue baby syndrome.” Nitrates
can be changed to nitrites by bacteria in our bodies and reduce the
oxygen carrying ability of blood especially in babies and young children.
Nitrates also form nitrosamines that are suspected of causing stomach
cancer, but can cause excessive algae growth in lakes and estuaries.107
Pesticides are also harmful; in agricultural areas they can pollute ground water causing it to
exceed the water quality standards.108 Over-application of these various herbicides and
pesticides become diluted into run-off rain water and eventually percolate into the underlying
aquifer unit.109 Groundwater is also polluted by outflows from pollution in rivers and streams or
102
Ringler, supra note 49.
Manjula V. Guru & James E. Horne, 2000, The Ogallala Aquifer: The Kerr Center for Sustainable Agriculture,
Inc. Oklahoma, 1-32, at 8, available at www.kerrcenter.com/publications/ogallala_aquifer.pdf (last visited Nov. 6,
2008).
104
Id.
105
Id.
106
Id.
107
Id. at 30.
108
Id. at 8.
109
Ringler, supra note 49.
103
from polluted saline estuaries, in areas where groundwater has been depleted to a low level.110 In
areas where feeding operations of cattle, hogs, and chickens are common, such as in the Ogallala
region; animal wastes has become a major source of water pollution.111 The greatest non-point
source of water pollution in the U.S. is agricultural runoff.112
Non-point refers to sources of pollution that are scattered, with no specific
place or point where they discharge into a body of water. This makes
them more difficult to identify, monitor, and regulate. Such sources
include run off from farm fields, golf courses, lawns, roads, parking lots,
etc. Point sources, on the other hand, are specific locations such as
drainpipes, or sewers.113 (USGS. High Plains Regional Ground Water
(HPGW) Study. National Water-Quality Assessment (NAWQA) Program.
[http://webserver.cr.usgs.gov/nawqa/hpgw/HPGW_home.html])
In places, the water does not meet U.S. Environmental Protection Agency drinking water
standards with respect to several dissolved constituents (dissolved solids/salinity, fluoride,
chloride, and sulfate).114 Only a small fraction of Ogallala groundwater is contaminated so that
it fails to meet drinking water standards.115 The communities that get their drinking water from
the ground are subject to federal monitoring requirements.116 In most other areas, groundwater
monitoring is infrequent or virtually nonexistent.117
Increases in concentrations of alkalinity, sodium, nitrate, and triazine (herbicide) have
been found in water that is under small areas of irrigated cropland in Nebraska and Kansas.118 In
110
Guru & Horne, supra note 103, at 8.
Guru & Horne, supra note 103, at 9.
112
Guru & Horne, supra note 103, at 9.
113
Guru & Horne, supra note 103, at 31.
114
Guru & Horne, supra note 103, at 9; see generally U.S. Environmental Protection Agency, Drinking Water
Contaminants, available at http://www.epa.gov/safewater/contaminants/index.html (last updated June 5, 2008).
115
Guru & Horne, supra note 103, at 9.
116
Guru & Horne, supra note 103, at 9.
117
Guru & Horne, supra note 103, at 9.
118
Ringler, supra note 49.
111
a 1984-1985 study of 132 wells in Nebraska 43 had dangerous amounts of atrazine in them.119
There has also been an abrupt increase in 2, 4-D (2, 4-Dichlorophen-oxyacetic acid) found in
water that underlies rangeland in a small area in Kansas.120
The Clean Water Act (1972) and its amendments banned the most egregious examples of
pollution from industrial point sources but many less obvious pollution sources still exist. Other
potential sources of groundwater contamination include landfills, abandoned waste sites, and oil
and gas brine pits.121 The Love Canal was one of the most widely known examples of
groundwater pollution.122 In 1978, residents of the Love Canal neighborhood in upstate New
York noticed high rates of cancer and an alarming number of birth defects.123 This was
eventually traced to organic solvents and dioxins from an industrial landfill that the
neighborhood had been built over and around, which had then infiltrated into the water supply
and evaporated in basements to further contaminate the air.124 Eight hundred families were
reimbursed for their homes and moved, after extensive legal battles and media coverage.125
The Ogallala aquifer is responsive to changes in climate temperature, precipitation,
humidity and solar radiation. Some predict the impact of global warming on the aquifer will
make the high plains region hotter and drier in the coming years.126 "The arid lands of
southwestern North America will imminently become even more arid as a result of humaninduced climate change just at the time that population growth is increasing demand for water,
119
Ringler, supra note 49.
Ringler, supra note 49.
121
Guru & Horne, supra note 103, at 9.
122
Eckardt C. Beck, January 1979, The Love Canal Tragedy: U.S. Environmental Protection Agency Journal,
available at http://www.epa.gov/history/topics/lovecanal/01.htm (last updated Sep. 21, 2008).
123
Id.
124
Id.
125
Id.
126
Norman J. Rosenburg, Daniel J. Epstein, David Wang, Lance Vail, Raghavan Srinivasan, & Jeffrey G. Arnold,
Aug. 1999, Possible Impacts of Global Warming on the Hydrology of the Ogallala Aquifer Region, Climate Change,
Vol. 42, No. 4, 677-692, at 679, available at http://www.springerlink.com/content/n2w408r8vn35080n/fulltext.pdf.
120
most of which is still used by agriculture," said Richard Seager, senior research scientist at the
Lamont-Doherty Earth Observatory.127 Others believe that as air temperatures increase so will
its ability to hold moisture, resulting in more precipitation and a hotter, wetter region. 128 Models
consistently predict a 10 percent loss in soil moisture due to an overall warming, a major factor
in sustaining the aquifer.129 A hotter region will be in more need of water to sustain its crops and
people, and this will create more stress on the Ogallala in the future.
IV. CONSERVATION OF THE OGALLALA AQUIFER
Although rain recharges the aquifer, we are still using the supply faster than it is being
replaced leading to smaller and smaller aquifers.
Several factors have occurred since the mid-1970s that reduce the often
perceived impending catastrophe of groundwater depletion. Local
groundwater management, natural resource, and conservation districts
have become better organized and more restrictive, offer more educational
programs for conserving groundwater, and have developed plans and
policies to extend the life of the aquifer. Also, irrigation water efficiency
technology has improved. Many technologies such as surge irrigation, low
pressure center pivots, ridge till, drop tubes, and irrigation scheduling have
been developed that give irrigators an opportunity to conserve water.
Irrigators are accepting these technologies because saving water means
saving energy, which translates to lower production costs and greater profit.130
Another significant factor in the life expectancy of the aquifer is the price of irrigational
practices (cost of pumping), as well as the market prices of the crops being irrigated.131
State governments and local water districts throughout the region have developed policies
to promote groundwater conservation to slow or even eliminate the expansion of irrigation.132
127
Op-Ed, April 5, 2007, Global Warming Brings Perpetual Drought to U.S. Southwest: Environmental News
Service New York, available at http://www.ens-newswire.com/ens/apr2007/2007-04-05-01.asp (last visited Nov. 7,
2008).
128
Rosenburg, Epstein, Wang, Vail, Srinivasan, & Arnold, supra note 126, at 679.
129
Rosenburg, Epstein, Wang, Vail, Srinivasan, & Arnold, supra note 126, at 680.
130
White, Population Change in the High Plains Ogallala Region, supra note 45, at 185.
131
Ringler, supra note 49.
Federal government efforts have also helped to limited irrigation through programs such as the
PIK (Payment in Kind) and the Conservation Reserve Programs that give subsidies to irrigators
for taking marginal land out of production.133 Total irrigated area from 1959 to 1978 grew from
6.9 million acres (27,900 km2) to 12.9 million acres (52,200 km2), but declined to 10.4 million
acres (42,100 km2) by 1987.134 While groundwater depletion since 1978 has played a role in
reducing irrigated acreage, the major factors are economic through crop prices, energy costs, and
government subsidies.135 Farmers have little incentive to use less water through irrigation.136
Even with the declines in ground water, the nation’s renewable energy focus has made waterdemanding crops more fruitful for farmers that can grow them.137
Since the water table has dropped in some areas wells are required to be deepened to
reach the falling water levels. Utilizing treated recycled sources of water in agriculture is one
approach at trying to save the future of the aquifer.138 Another method to reduce the amount of
water use is changing to a crop that requires less water.139 Some local groundwater conservation
districts aid landowners in capping or plugging their unused wells, this helps in keeping
contaminants out as well as helping to prevent water evaporation.140 Preserving the playas that
lie above and recharge ground water are also important aspects in preserving the Ogallala
132
Kromm, supra note 22.
White, Population Change in the High Plains Ogallala Region, supra note 45, at 185.
134
White, Population Change in the High Plains Ogallala Region, supra note 45, at 185.
135
White, Population Change in the High Plains Ogallala Region, supra note 45, at 185.
136
Blackburn, supra note 37.
137
Blackburn, supra note 37.
138
Water Recycling And Reuse: The Environmental Benefits, US Environmental Protection Agency, Water Di vision
Region IX - EPA 909-F-98-001, 9 p. available at http://www.epa.gov/region09/water/recycling/brochure.pdf (last
updated Aug. 27, 2008).
139
Jeremy P. Meyer, Oct. 2006, Farmers' Tower of Power: Denver & the West, The Denver Post, P. A-01 available
at http://www.denverpost.com/news/ci_4433612.
140
Erica Irlbeck, April 2004, Panhandle Water Group Says: Conservation Crucial to Preserving Ogallala,
Southwest Farm Press, available at
http://southwestfarmpress.com/mag/farming_panhandle_water_group/index.html.
133
aquifer.141 Playas are the main source of recharge for the aquifer, but conservation has proven
difficult because 95% are on private lands. 142 To aid in the preservation process, governments
have instituted programs that will pay landowners to restore and conserve playas and
wetlands.143 High gas prices have also helped to set a limit on the amount of pumping of
groundwater because pumping requires so much energy.144 Water is relatively cheap in the
United States; it cost around 1/3 of a cent per gallon, and takes up a very low percent of the
average household budget.145 A way of lowering water consumption would be to raise the cost
of water or to put a tax on water; this would also help raise money for building better pipelines
and other water-related conservation efforts.146
The average specific yield for the High Plains Aquifer is about 0.15, this
means only 15 percent of all the water available in the aquifer can be
recovered using irrigation pumps. The remaining water is unused and
locked up in the unsaturated zone. The groundwater depletion problems
could be forestalled if this non-recoverable water could be forced to the
saturated zone. One experimental means of accomplishing this is by
injecting air into the unsaturated zone, which breaks down capillary action
and permits the movement of water to the saturated zone. Air injection
experiments have shown positive results for localized areas, but widespread
applicability has not proven effective.147
The soil Conservation Service is also promoting tools for irrigators that can slow the depletion of
the Ogallala.148 Over-watering crops wastes water and causes chemicals to leach into the water
141
Marlena Hartz, Aug. 12 2006, Conservationists Believe Ogallala Aquifer Recharged Through Playa Lakes,
Clovis News Journal, available at http://www.cnjonline.com/news/playas_17774_article.html/aquifer_playa.html.
142
Id.
143
Id.
144
Joseph S. Stroud, Aug. 16 2006, Ogallala Aquifer Starting to Run on Empty, San Antonio Express-News (TX), P.
01A, available at http://nl.newsbank.com/nlsearch/we/Archives?p_action=doc&p_docid=1138D7FA9453FAC0&p_docnum=1.
145
Pay Up or Dry Up; Texas and Water; Texas’s Water Troubles, The Economist, EBSCO Academic Search
Premier, 33 May 26 2001, available at http://findarticles.com/p/articles/mi_hb5037/is_200105/ai_n18271920.
146
Id.
147
Kromm, supra note 22.
148
Lorraine Peavy, Conserving Colorado’s Ogallala Aquifer, Soil and Water Conservation News, EBSCO Academic
Search Premier, (July 20, 1992).
table.149 A device called the “gypsum block” solves this problem and is a tool that measures soil
moisture content and determines if irrigation is necessary.150
Kansas has a proposal called the “zero depletion” proposal which Kansas would
drastically limit an area’s withdrawals to the amount of natural recharge over a prescribed period
of time.151 Another option is creating a tradable water deeds market. The tradable water deeds
policy would allow each water user to receive an initial allocation of water permits that are then
forfeited for each unit pumped less recharge.152 These permits could then be bought or sold
depending on the user’s need.153 Each year, the number of permits distributed would be limited
to work toward a more economically efficient and sustainable system.154 This could work by
allocating to an irrigator deeds for pumping 1,000 acre-feet of water from a well, if 100 acre-feet
are pumped the first year and recharge is 25 acre-feet, then deeds for 925 acre-feet remain for the
next year.155 The water deeds policy has a clear mechanism for limiting and allocating water,
some of the deeds are not issued so they can preserve water needed for future generations and
market forces would allocate usable water.156 These water deeds would create a market for the
groundwater stock in the same spirit as the markets for surface water that function through out
the region.157
149
Id.
Id.
151
Peterson, Marsh, & Williams, supra note 29, at 18; see generally Frances K. Vinlove & M. Jarvin Emerson,
Regional Economic Impacts of Constrained Groundwater Availability Under a Zero Depletion Management
Scenario, 53-78, available at http://www.jrap-journal.org/pastvolumes/1990/v22/22-2-4.pdf (last visited Nov. 21,
2008).
152
Peterson, Marsh, & Williams, supra note 29, at 18. See generally Mark W. Rosegrant & Gazmuri S. Renato,
1995, Reforming Water Allocation Policy Through Markets in Tradable Water Rights: Lessons From Chile, Mexico,
and California, P. 291-315, available at http://www.cuadernosdeeconomia.cl/Pdf/097roseA.pdf.
153
Peterson, Marsh, & Williams, supra note 29, at 18.
154
Peterson, Marsh, & Williams, supra note 29, at 18.
155
Peterson, Marsh, & Williams, supra note 29, at 18.
156
Peterson, Marsh, & Williams, supra note 29, at 18.
157
Peterson, Marsh, & Williams, supra note 29, at 18. Rosegrant & Renato, supra note 152.
150
Despite the major fact that the Ogallala is rapidly shrinking, there is still much opposition
to regulating ground water use. The Ogallala Aquifer Program began in 2004 under the
Agricultural Research Service (ARS); the program brings in university expertise in groundwater
hydrology and economic analysis.158 ARS pooled its resources to include colleagues skilled in
agricultural education, communications, irrigation technologies, water management, crop
genetics, cropping systems, and concentrated animal feeding operations.159 A promising new
technology that ARS scientists are counting on to conserve Ogallala water are automating
irrigation systems to precisely apply water, but only when needed, as determined by plant leaf
temperatures.160 Until recently, time-temperature threshold (TTT) was only suitable as a
research tool because of long strands of wires needed to connect field infrared thermometers and
those mounted on irrigation center pivot arms to computers.161 ARS now has 16 wireless
infrared thermometer sensors mounted on the arm of a center pivot system that irrigated cotton
during the 2007 season.162 Cotton is used because it is a common crop in the southern Ogallala
region and needs less water than grain crops, so it is more suited to a dry area like Texas where
water supplies and rainfall are limited.163 For cotton a temperature threshold of 82°F is used and
a time threshold of 7½ hours, this means that if the cotton leaf temperature stays above 82°F for
more than 7½ hours the irrigation will be automatically started.164 Eventually the system will be
commercialized through a cooperative research and development agreement with a center pivot
The Ogallala: Gauging, Protecting the Aquifer’s Health, United States Department of Agriculture: Agriculture
Research Magazine, April 2008, 4-8, available at http://www.ars.usda.gov/is/AR/archive/apr08/aquifer0408.htm
(last modified April 2, 2008).
159
Id. at 4
160
Id.
161
Id. See generally Donald F. Wanjura, Dan R. Upchurch & James R. Mahan, Crop Water Status Control with
Temperature-Time Threshold Irrigation, American Society of Agricultural Engineers Meetings Papers, published
July 23, 2003, Paper No. 032136.
162
Id.
163
Id. Wanjura, Upchurch & Mahan, supra note 161.
164
Id. Wanjura, Upchurch & Mahan, supra note 161.
158
manufacturing company that can build the sensors into their equipment.165 Center pivots are
used on 75 percent of the region’s irrigated acres, and the more expensive drip irrigation is used
on about 5 percent of the irrigated land.166 The goal that should be in the minds of all the people
living in the High Plains region is to use less water and still produce good crop yields.
V. WATER REGULATIONS AND DOCTRINES APPLIED IN THE OGALLALA
According to American law, water is deemed “personal property”, but water rights are
deemed “real property”.167 A water right is a right to use a certain amount of water annually at a
certain place, diverted from a specific point of diversion at a certain rate, as long as the right
holder follows the law and the conditions of the water right.168 A water right is a right only to
use the water, not ownership of the water; some types of water rights may be lost if they are not
used and state constitutions or statutes can declare the state’s water resource is owned by the
public or dedicated to the use of the public.169 There are several doctrines that have developed in
the US for groundwater allocation.170 Some states use the Rule of Capture also known as the
English Rule or Absolute Ownership Doctrine, this rule says that the owner of the land owns all
the water underneath that land and can pump water unlimited, except for malicious or wasteful
use.171 The Reasonable Use Doctrine (also known as the American Rule) permits unrestricted
pumping, this means the water must be for a reasonable purpose and be used on the landowner’s
165
Id.
Id.
167
John C. Peck, 2007, Groundwater Management in the High Plains Aquifer in the USA: Legal Problems and
Innovations, CAB International, University of Kansas Law, The Agricultural Groundwater Revolution:
Opportunities and Threats to Development, 296-311, at 298, available at
www.iwmi.cgiar.org/Publications/CABI_Publications/CA_CABI_Series/Ground_Water/.../Giordano_1845931726
-Chapter14.pdf (last visited Nov. 5, 2008).
168
Id. at 298.
169
Id.
170
Id. at 299. see generally Rights To Water, p. 11, available at
http://www.ag.auburn.edu/agec/courses/AGEC4070/section9.pdf (last visited Nov. 21, 2008).
171
Id.; Rights To Water, supra note 170, at 7.
166
land.172 The Correlative Rights Doctrine holds that landowners overlying an aquifer must share
the aquifer and the Prior Appropriation Doctrine applies the principle of “first in time, first in
right” to groundwater.173 The earlier “senior user” can enjoin a later “junior” right holder who
might impair the “senior” holder’s use.174
The Federal government's approach to ground water protection includes programs for
prevention, detection, and correction of contamination.175 The United States Environmental
Protection Agency (USEPA), United States Geological Survey (USGS) and United States
Department of Agriculture (USDA) are the agencies most heavily involved in ground water
policy and programs.176 USEPA is involved in all three programs for ground water, USGS is
primarily used as a detection resource program, and the USDA focus on agricultural programs
that prevent ground water contamination.177 Federal and State governments regulate ground
water through laws, regulations, and policies; state governments may help the federal
government enforce its law but also have their own laws and regulations.178
These three predominantly agricultural states Kansas, Nebraska and Texas
have unique ground water laws, which recognize water rights as property
rights and face unique problems. By looking at the different water laws of
the states, there may be a way to help better the entire Ogallala regions ground
water law program. An Absolute Ownership Doctrine prevailed in Kansas
until 1945 when the state enacted the Kansas Water Appropriation Act (Kansas
Statutes Annotated, 2005, §§82a–701, et seq.), this act adopted the Prior
Appropriation Doctrine for groundwater. Anyone who wants to divert
ground water after 1945 has had to obtain a permit from the chief engineer of
the Division of Water Resources (DWR) before diverting water. The Act
allowed people who were using the water on the date the Act became effective
172
Id.; Rights To Water, supra note 170, at 7.
Id.; Rights To Water, supra note 170, at 8.
174
Id.
175
Ground Water Primer EPA Region 5 Agricultural & Biological Engineering, Ground Water Protection
Programs: Federal, State and local Programs, available at
www.purdue.edu/envirosoft/groundwater/src/programs.htm (last visited Nov. 8, 2008).
176
Id.
177
Id.
178
Id.
173
to claim vested rights, but people who owned water rights by virtue of
landownership alone but who were not diverting water lost their rights.
Landowners not using their underlying groundwater challenged the
constitutionality of the Act on the basis of an unconstitutional taking for which
compensation should be given from the state.179
The basis of this constitutional challenge is the landowners claimed that by eliminating their
unused water rights the state had taken them, and according to the U.S. Constitution’s Fifth
Amendment this taking requires the government to compensate them for their property.180 The
landowners argued that even an unused water right is a property right.181 The courts, however,
upheld the Act against such challenges (Williams v. City of Wichita, 1962).182 Other challenges
could be raised when the state doesn’t eliminate water rights entirely, but restricts pumping by
water right holders to levels below their permitted annual quantities.183 Extensive regulatory
reduction of pumping groundwater is arguably equal to a taking of a property right even though
the government is not acquiring title to the water right.184 In response to the shortage of
groundwater caused by to much pumping, the legislature enacted the Groundwater Management
District (GMD) Act.185 There have been 5 GMDs established in Kansas, and they have the
power to enact management programs and recommend regulations to the DWR.186 Kansas
courts as of yet have still not decided the takings issue.187
Nebraska on the other hand uses a hybrid of the Reasonable Use Doctrine and the
Correlative Rights Doctrine for groundwater rights.188 The right to use groundwater in Nebraska
179
Peck, supra note 167, at 298-299.
Peck, supra note 167, at 302.
181
Peck, supra note 167, at 302.
182
Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578 (1962).
183
Peck, supra note 167, at 302.
184
Peck, supra note 167, at 302.
185
Peck, supra note 167, at 299.
186
Peck, supra note 167, at 299.
187
Peck, supra note 167, at 303.
188
Peck, supra note 167, at 300. Rights To Water, supra note 170, at 7.
180
comes from ownership of the overlying land, no permit is required to drill wells except in
groundwater management areas.189 The Reasonable Use Doctrine generally prohibits the user
from using water off the overlying land, but Nebraska permits public water suppliers to do so, as
long as there is compensation to injured overlying landowners, and also permits water use offsite
for agricultural uses if it does not adversely affect other users and is deemed in public interest.190
Unlike Kansas, which has five special districts devoted exclusively to groundwater management,
Nebraska has 23 natural resource districts (NRDs).191 Under the Nebraska Ground Water
Management and Protection Act (Nebraska Revised Statutes, 2005, §§46–701, et seq.),
groundwater management is local rather than a state responsibility.192 The Act permits NRDs to
regulate and control groundwater in the Groundwater Management Act (GMA) with well
spacing, pumping restrictions, rotation requirements, metering and reduction of irrigated areas.193
A Nebraska Supreme Court case in 2005 recognized the right of surface water users to sue
alluvial groundwater pumpers for damages, if the groundwater pumping causes unreasonable
harm (Spear T Ranch v. Knaub, 2005).194
Texas uses the Rule of Capture for groundwater.195 The Rule of Capture provides that
the landowners may take all the water they can capture under their land and do with it what they
please, and they will not be liable to neighboring landowners even if in so doing they deprive
their neighbors of the water’s use.196 The Texas Supreme Court adopted the Rule of Capture in a
189
Peck, supra note 167, at 300.
Peck, supra note 167, at 300.
191
Peck, supra note 167, at 300.
192
Peck, supra note 167, at 300.
193
Peck, supra note 167, at 300.
194
Spear T Ranch v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005).
195
Peck, supra note 167, at 301.
196
Harry Grant Potter, History and Evolution of the Rule of Capture; Conference Proceedings Report 361, 2004, 100
Years of Rule of Capture: From East to Groundwater Management, Texas Water Development Board, available at
http://www.twdb.state.tx.us/publications/reports/GroundWaterReports/GWReports/Report%20361/1%20CH%20Pot
ter.pdf (last visited Nov. 5, 2008).
190
1904 case (Houston and Texas Central Railroad Company v. East, 1904), the court applied that
rule instead of the Reasonable Use Doctrine, and by doing this cited two public policy
considerations, and choosing another doctrine would generally interfere with agriculture,
industry and hence the development of the state.197 Thus, the Rule of Capture exists in as a
common-law rule in Texas, allowing courts to modify the Rule of Capture to prevent willful
waste, malicious harm to a neighbor, and subsidence.198 The landowner is allowed to pump
water and use it on or off the land overlying the aquifer, according to the Texas Rule of
Capture.199
Diversions of the Ogallala aquifer groundwater already are happening in
Texas, and more are planned. The Canadian River Municipal Water Authority
(CRMWA), supplies water to almost 500,000 people in 11 cities, draws
water from Lake Meridith and Ogallala wells in the Texas Panhandle.
The Mesa Water Project (MWP), proposed in 1999, also plan to pump and
move 246.6 million cubic meters of Ogallala aquifer water per year to
municipalities in the state. But, diversions of groundwater in Texas are
not without controversy. The concerns involve matters such as privatization
of water supplies; claims that withdrawals may greatly exceed recharge,
leaving no water for the future generations and the otherwise adverse effects
on rural communities; failure of water marketing projects to take third party
effects into account; and the lack of a state groundwater policy and water quality.200
The Rule of Capture in Texas, giving landowner’s ownership of groundwater that lye beneath
their land, this provides great freedom of use by the landowner, but gives little protection to
neighbors and little control by the state over the declining water table.201 The same is true with
the two doctrines Nebraska relies on, the doctrine of Reasonable Use and Correlative Rights.202
With Kansas’ requirements of permits prior to use, the Prior Appropriation Doctrine provides a
197
Houston and Texas Central Railroad Company v. East, 98 Tex. 146, 81 S.W. 279 (1904).
Peck, supra note 167, at 301.
199
Peck, supra note 167, at 310.
200
Peck, supra note 167, at 310-311.
201
Peck, supra note 167, at 311. Rights To Water, supra note 170, at 7.
202
Peck, supra note 167, at 311. Rights To Water, supra note 170, at 7-8.
198
greater level of state control and protection of water rights from other users.203 However, once
water rights are obtained under any of the various doctrines, all three states recognize them as
property rights protected against government takings without compensation by the US
Constitution’s Fifth Amendment.204
The Ogallala regions policy makers need urgently to implement policies that provide
incentives to farmers to adopt sustainable practices; promote long-term environmental integrity
along with long-term productivity by supporting policies for conserving soil and water, and
reducing dependence on capital intensive equipment and chemicals; and introduce new crops
more suited to the soil conditions, and encourage diversity of crops based on local specific
knowledge.205 The Federal government and the regions Policy makers need to come together to
solve the problem of the rapid depletion of the Ogallala for their citizens and future generations.
Through looking at policies already in place and coming up with new policies, it is possible to
regulate the use of water in the aquifer and come to an agreement that best suits everyone and
rapidly slows the depletion process.
VI. CONCLUSION
The Ogallala Aquifer is a valuable and important resource. It has been around for
thousands of years and makes the high plains livable for plants, animals and people. Agriculture
currently claims some 70 percent of world water with-drawls with domestic, municipal and
industrial uses accounting for the remaining 30 percent. In arid parts of the country agriculture
may claim even a bigger percent of the water. Without irrigation, the High Plains region would
203
Peck, supra note 167, at 311. Rights To Water, supra note 170, at 8.
Peck, supra note 167, at 311.
205
Guru & Horne, supra note 103, at 29.
204
have remained a hostile and unproductive frontier environment, and even today dry-land farming
remains a high-risk. Despite the positive advances in technology that have occurred in this
region, one should not be overly optimistic. Groundwater depletion continues in much of the
aquifer, even though at reduced rates in some regions, many farmers face a reduction in future
farm income as they decrease their water use. Because of the low recharge rate it is not enough
to just slow the depletion, we must also come up with ways to recharge and regulate the
Ogallala. Workable alternatives for sustainable development have to be further explored, so that
everyone may use and enjoy the Ogallala Aquifer now and in the future.