Document Type
Article
Publication Date
2024
Abstract
According to NASA, the Earth experienced its hottest day in recorded history on July 22, 2024, surpassing the previous hottest day, which was set in 2023. The year 2024 will enter the record books as the hottest year since pre-industrial times. The temperatures in 2024 exceeded the year 2023, during which the average global surface temperature was the warmest ever recorded in the past 174 years. These meteorological facts—although alarming on their own—are the backdrop for the legal analysis contained in this Article. The driest states in the Southwest, including Arizona, Colorado, Nevada, New Mexico, and Utah, have long relied on surface water to support their populations. One of the most pernicious effects of the megadrought is that the ongoing increases in air temperature also dry out already-limited surface water supplies, inevitably leading to extra pressure on groundwater resources. Indeed, groundwater represents a critical source of future water supplies in a warming world. Accordingly, this Article looks at states in the arid Southwest and proposes legislative and doctrinal changes to water law. The goal of this Article is to help communities and policymakers plan effectively for the sustainable management of groundwater in this period of resource scarcity. This Article suggests four regulatory solutions for groundwater: (1) refining the doctrine of “safe yield,” (2) eliminating “exempt” domestic and livestock wells while requiring permitting and withdrawal limits for all wells, (3) providing incentives for metering and a move toward mandatory metering, and finally, (4) eschewing a patchwork approach in favor of comprehensive and strict state groundwater regulation. This Article builds on the literature in the water law field. Some groundwater scholars have recommended economic approaches—such as water exactions and Pigouvian taxes—to correct some of these problems. By contrast, this Article recommends modest adjustments in doctrinal law and regulations that can be enacted as part of the project of developing a universal, sophisticated regulatory regime for groundwater. Taken in combination, stricter regulatory mandates can be implemented in a highly complementary fashion with market-driven approaches. Given the groundwater crisis that the West faces in the megadrought era, regulatory approaches that promote certainty will be particularly valuable for governments, as well as for farmers and businesspeople.
Publication Title
Ohio State Law Journal
Volume
85
Issue
6
First Page
1091
Last Page
1135
Keywords
Megadrought, groundwater management, groundwater overdraft, safe yield, mandatory metering
Recommended Citation
Warigia Bowman,
Surviving the Megadrought,
85
Ohio State Law Journal
1091
(2024).
Available at:
https://digitalrepository.unm.edu/law_facultyscholarship/959