In the West, water has always been worth fighting for, but what about getting paid not to use it? As drought, limited surface water supplies and declining aquifers place increasing pressure on western agriculture, groundwater conservation easements present a creative approach to water conservation. But are groundwater conservation easements a practical path forward for the West, or do their long-term restrictions warrant a closer look? And perhaps more importantly, is western water law prepared to recognize and protect the right to conserve?
Groundwater conservation easements are voluntary agreements through which landowners may agree to limit pumping or permanently retire wells in exchange for compensation, potential tax benefits or both. Conservation easements frequently impose restrictions for extended periods of time or in perpetuity, potentially binding landowners and future generations indefinitely. These easements aim to conserve groundwater by financially incentivizing reductions in groundwater pumping over long periods of time, potentially slowing aquifer depletion. Yet one thing money cannot buy is a look into the future.
Agricultural production changes, irrigation efficiency and technology evolve, droughts come and go and generations pass. Yet the restrictions imposed by perpetual groundwater conservation easements may remain unchanged. For easements that run with the land and bind future generations, the question becomes: is today’s incentive worth tomorrow’s loss of flexibility?
For example, a landowner decides to move production into dryland farming for compensation and potential tax incentives provided through a groundwater conservation easement, permanently retiring wells. Depending on the easement terms, this decision may effectively “lock” the land into limited operations. But what happens when the next generation wants to return to irrigated agriculture, or advancements in irrigation technology make previously uneconomical production viable again? This decision may not be reversable and the decision to conserve groundwater today may ultimately limit the agricultural opportunities for future generations.
However, it is important to recognize that consumptive use and conservation are not always the most compatible. At what point does the need for groundwater conservation justify limiting flexibility in future agricultural operations. Perhaps we have reached that point in certain states, particularly in heavily utilized aquifers with low recharge rates. But landowners should approach permanent restriction with caution, and it may not be the answer in every circumstance.
While practically, one landowner’s reduction in groundwater pumping may preserve water within an aquifer, it does not necessarily mean that water becomes legally available for new or neighboring uses. Nor does it guarantee that other users will reduce their pumping. This raises a broader question: whether western water law is equipped to accommodate conservation.
Under many western water law regimes governed by “prior appropriation,” a system for generally prioritizing earlier water rights over later ones, beneficial use remains central to maintaining water rights. It is critical to recognize that water law is state specific and modern day regulatory structures have varying requirements in different states, yet some states continue to apply beneficial use standards. Historically, western water law has required applying water to a useful and legally recognized purpose while limiting the quantity to what is reasonably necessary for that purpose.
Some states declare beneficial use as domestic use, stock watering, industrial and commercial use, agriculture, irrigation, hydroelectric, mining and recreation, among others. However, the history of western water law lies in the fact that a “beneficial use” must also be reasonably efficient and accomplish a beneficial purpose without waste. Yet, when a groundwater conservation easement involves leaving water in the ground rather than pumping it, states must grapple with how conservation fits within existing water law frameworks.
Perhaps the answer is not as simple as whether conservation constitutes a beneficial use, but whether our existing legal frameworks are equipped to protect conserved groundwater and address the consequences for future generations.
For some landowners, groundwater conservation easement may be an opportunity they are looking for. Retiring irrigated acreage, reducing pumping costs and receiving compensation for conserving a resource may make practical sense. But landowners must critically examine the easement terms they are entering, considering the long-term value of their land, the future interests of their operation and those interests of the next generation. Landowners must also be wary that their states are prepared to integrate conservation easements into their broader water law principles and regulations.
Ultimately, conservation and agriculture production do not have to be opposing interests. The challenge is finding ways to encourage groundwater conservation while recognizing the long-term interests of those who depend on the land and the legal consequences of permanent restrictions.
After all, the question is not simply what groundwater is worth today, but what the ability to use it may be worth tomorrow. — ELISE BALIN HILL
(Elise Balin Hill is an attorney for Nicholas Law in Cheyenne, WY, where she covers civil litigation, agriculture, natural resources, water, environmental and energy law.)
