In the southwestern United States, riparian areas - the ribbons of green vegetation found along watercourses - offer the most valuable habitat within the desert ecosystem. The most valuable of these riparian areas are dominated by trees whose roots draw water directly from a shallow aquifer. Shallow aquifers are found along perennial streams - streams that flow year-round - but shallow aquifers are also found along streambeds that are generally dry. From a biological standpoint, the lack of surface water flowing down a watercourse may not harm the riparian vegetation. From a legal standpoint, the lack of surface water is significant. In Arizona and California, two states where a majority of streams are non-perennial, surface water use is tightly controlled under the legal doctrine of prior appropriation while groundwater use is largely unregulated. Due to the general absence of property rights for groundwater, public and private landowners interested in conservation lack established legal tools to protect these shallow aquifers from increased water use upstream.
This article explores legal doctrines that public and private landowners might utilize in order to obtain a legal right to a stable depth to groundwater for the use of riparian vegetation. After dismissing the standard legal doctrines pertaining to groundwater, this article considers the California doctrine of "subterranean streams," the Arizona doctrine of "subflow," and the doctrine of federally reserved water rights. The article concludes that in some cases these latter doctrines might provide the protection a landowner needs to halt consumption elsewhere. However, these doctrines would not apply in all situations and, as the landowner would be interpreting these doctrines in a novel manner, she would likely face an uphill battle in the courts. The article ends with a few suggestions for legislative changes that would not substantially alter the existing system of water rights but would greatly increase opportunities for the protection of this important resource.
- Subterranean Streams,
- Winters Rights
Available at: http://works.bepress.com/christopher_losi/1/