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 the scope of jurisdiction under the federal Clean Water Act. The Article constructs a typology of the purported justifications for exceptionalism and identifies its two key consequences: the over-propertization and under-regulation of groundwater. It argues that these distortions must be corrected, not as a normative matter, but as essential reforms to bring the law into alignment with science and to promote analytical coherence and faithfulness to doctrinal purpose. The Article concludes by culling the lessons from over a century and identifying promising analytical tools to move the law from exceptionalism to integrity.
Klein, Christine A, Groundwater Exceptionalism: The Disconnect Between Law and Science (July 16, 2021). Emory Law Journal, volume 71, no 3, 2021.