Legal Protection for Groundwater-Dependent Ecosystems

Abstract

This Note concerns the legal protection of groundwater-dependent ecosystems in the United States and abroad. By first describing the science and ecology of ecosystems that are dependent on groundwater and then surveying the current American legal system that fails to adequately protect groundwater-dependent ecosystems (GDEs), this Note proposes legal reforms that could vastly improve groundwater management systems. State protection of GDEs is sparse and often only operates indirectly as a result of states’ water policies focused on water quantity upkeep for consumptive purposes. Part I provides an overview of GDEs. Part II discusses state legal protection, including indirect state protection measures and the public trust doctrine. Part III gives an assessment of the federal government’s ability to protect GDEs. The federal government may explicitly reserve federal water rights to protect GDEs through the Winters Doctrine, which has successfully protected some at-risk ecosystems by ensuring adequate groundwater resources within federally reserved lands. Additionally, the federal government, like the states, can also indirectly protect GDEs. As highlighted in this Note, such federal actions include attempts to influence state policies through education concerning the hydrological connectivity of surface and ground waters, and thus the necessity to sustainably manage water sources, as well as threats regarding federal funding which effectively forced states to adopt those sustainable water management policies. The Endangered Species Act has unsurprisingly had considerable success in protecting GDEs, but this success is necessarily restricted to situations in which a threatened or endangered species is present. This Note also includes an analysis of the Sporhase Doctrine, which involves the protection of GDEs by requiring the open trade of groundwater resources through the Dormant Commerce Clause. But in practice, this doctrine has been generally ineffective.