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. This 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 solely as a normative matter, but also as essential reforms to bring the law into alignment with science and promote analytical coherence, faithfulness to doctrinal purpose, and sustainable water use. This Article concludes by culling the lessons from over a century and identifying promising analytical tools to move the law from exceptionalism toward integrity. More broadly, this analysis offers a roadmap for integrating law and science in the context of resource management, a challenge that will become increasingly critical in the face of climate change.
Christine A. Klein, Groundwater Exceptionalism: The Disconnect between Law and Science, 71 Emory L. J. 487 (2022)