Why Louisiana’s Groundwater Management and Regulation Must Be Addressed

October 14, 2015

Water is the driving force of all nature.[1] Water’s declining supply and rising demand will likely make water the primary commodity of the twenty-first century,[2] which will cause it to parallel the value and uneven distribution of oil and to alter national and international economic landscapes.[3] While other states have developed legislation to monitor and protect this dwindling natural resource, Louisiana has shaped its water-related legislation largely to manage and distribute its abundance of water. [4] The little legislation Louisiana has for the protection of its water supply has been promulgated as a reaction to various crises.[5] Louisiana is currently playing a passive role in America’s water future and leaving itself vulnerable to other States, which “are more than happy to make the plans for [Louisiana].”[6]

The majority of Louisiana’s culture has developed around the State’s intimate relationship with waterways.[7] Even though the Louisiana Constitution explicitly mandates protection for waterways, its legislator has failed to establish a sustainable regulatory system.[8] Through Louisiana’s crisis-by-crisis style of legal and regulatory development, the legislator has attempted to answer the conundrum that water presents. Water creates problems by being “simultaneously a precious life-giving necessity, a commodity with universal utility in industry, and a nuisance to be disposed of, diverted, and controlled.”[9]

In addition to the complex and multi-faceted needs it serves, water has a correlative and integral nature due to its continuous circulation and its conservation through the hydrological cycle’s stages of evaporation, condensation, precipitation, infiltration, etc.[10] Louisiana has, with the enactment of the Digest of 1808, regulated surface water and groundwater separately despite no evidence of an abiding understanding of these basic connections.[11] Running waters, and the waters and bottom of natural navigable water bodies are both public things that belong to Louisiana.[12] Bordering landowners have the right to use the surface water.[13] In contrast, groundwater, when reduced to possession, is a privately owned commodity susceptible of ownership.[14] These segregated systems are currently subject to different legal regimes and will eventually drive the State’s water supply toward depletion.[15] Therefore, by investigating the value of Louisiana’s groundwater to the culture, and economy, one can identify its key uses and abuses that will influence the current and future direction of the existing regulatory scheme.

Groundwater has many advantages over surface water, which includes its availability, dependability, efficiency, and uniform quality.[16] Compared to surface water sources that can sometimes be separated by large distances, groundwater generally has a widespread availability especially because it is available all year.[17] The amount of precipitation directly affects surface water’s dependability, but while wet conditions may affect a ground water’s aquifer recharge, the aquifers actually preserve the water for use at any time.[18] The use of groundwater is often more efficient because when water is pumped near its place of use, which reduces overhead costs such as transportation.[19] Furthermore, the process of percolation[20] naturally filters out many contaminants in the water and its location under the earth regulates its temperature causing groundwater to have a more uniform quality and temperature than surface water.[21]

Louisiana is blessed with an abundance high quality groundwater.[22] This abundance in conjunction with its beneficial use over surface water explains the increase of Louisiana’s groundwater withdrawal while surface water withdrawals decreased from 2005 through 2010.[23] Consequently, an inadequate monitoring network, saltwater intrusion, and high groundwater use is depleting Louisiana’s most valuable resource – one upon which Louisiana’s culture, economy, and natural resources largely depend.[24]

As a water abundant state, Louisiana is known to be “The Sportsman’s Paradise”– a “heaven for fishermen, fowl hunters, bird watchers, canoeists, boaters, and general outdoors persons.”[25] Louisiana’s unique and attractive state is one of America’s top leisure destinations causing Louisiana’s travel and tourism industry to be the seventh largest employer with one out of ten jobs directly dependent on the industry.[26] Louisiana’s water resources are instrumental in maintaining this culture, which results in 9.3 billion dollars to be spent in Louisiana in 2010.[27] Groundwater is extremely valuable to Louisiana’s culture. Its intrinsic connection to surface water resources results in groundwater being “the sole source of life-giving water for many of those sensitive environments comes from the ground” during drier months or droughts.[28]

Additionally, Louisiana’s economy is in many ways driven, at least in part, on the industries’ access to adequate amounts of water. The agricultural, aquaculture, and industrial sectors consume more than fifty percent of the Louisiana’s groundwater use.[29] The 2014 Business Facilities annual report ranked Louisiana the number one business climate in the United States,[30] emphasizing Louisiana as “the epicenter of the United States industrial rebirth.”[31] Louisiana ranks first in water utilization for industrial use among all fifty states because industries can find a dependable supply of water.[32] Consequently, this influx in some areas depletes Louisiana’s groundwater supply,[33] and unhealthy water resources stunts economic and workforce growth.[34] Clearly, if the legislature does not act to ensure that the water supply remains dependable, this unprecedented economic growth will be in jeopardy.

Louisiana’s population growth parallels its economic growth placing a further strain on its groundwater supply from the increasing demand for water for food production, household consumption, etc.[35] From 2015 to 2060, the United States population is estimate to grow from about 320 million to almost 417 million.[36] In 2015, more than half of Louisiana’s residents use twenty-four percent of the groundwater’s daily withdrawal and approximately 420 million gallons of that groundwater is as drinking water.[37] The growing population will directly affect the amount of groundwater consumed.

Because human activities contribute to the loss of other Louisiana natural resources, such as its coastal wetland, this population growth and freshwater availability will directly affect this loss.[38] Freshwater plays a vital role in combating land loss and aquifer depletion, thus ensuring an adequate supply of water is critical for sustaining the critical coastal wetland habitats and reducing the impinging saltwater intrusion that endangers Louisiana’s rice, cattle, crawfish farming, and the aquifers.[39]

Groundwater both directly and indirectly affects the sustainability of “The Sportsman’s Paradise,” Louisiana’s industry infrastructure, and a wide range of other natural resources, and their ability to continue to contribute to local and regional economic health. [40] With a high reliance on Louisiana’s groundwater, the total economic, social, and proprietary value of water is enormous, and as a finite resource, competition in its management and use is inevitable.[41] Water is no longer the abundant, cheap, available resource that it was in the nineteenth and twentieth centuries.[42] Therefore, Louisiana must establish a uniform system to protect this valuable resource and to direct its use in the most efficient and effective manner.

Preferred Citation: Camille Walther, Why Louisiana’s Groundwater Management and regulation Must Be Addressed , LSU J. Energy L. & Res. Currents (October 14, 2015), [http://jelr.law.lsu.edu/?p=1244].

[1] Laurent Pfister et al., Leonardo Da Vinci’s Water Theory: On the Origin and Fate of Water, at vi (International Association of Hydrological Sciences Press 2009) (quoting Leonardo Da Vinci (1452­­–1519)).

[2] Edward M. Kerschneer and Michael W. Peterson Peterson, Peak Water: The Preeminent 21st Century Commodity Story 1 (Nov. 2011), available at https://www.morganstanleyclientserv.com/contentmanagement/HTMLFiles/pdf/gic _ peakwater.pdf.

[3] Mark Davis and James Wilkins, A Defining Resource: Louisiana’s Place in the Emerging Water Economy, 57 Loyola L. Rev. 271, 273 (2011); See also Suzanne McGee, Companies Proclaim Water the Next Oil in a Rush to Turn Resources Into Profit, The Guardian, July 27, 2014, http://www.theguardian.com/money/2014/jul/27/water-nestle-drink-charge-privatize-companies-stocks [http://perma.cc/KMP8-KQHH].

[4] Davis, supra note 3, at 282.

[5] Id. at 271, (“[T]he [legislation] has been obscure, defined more by specific uses and periodic crises that command intense but brief attention than by a systematic approach to management.”).

[6] Craig Sims, Louisiana’s Water Compacts Might Not Protect Shared Resources, KTBS, Aug. 25, 2014, http://www.ktbs.com/story/26294829/louisianas-water-compacts-might-not-protect-shared-resources [http://perma.cc/9GLZ-7J9D].

[7] Marc Reisner, Cadillac Desert: The American West and Its Disappearing Water 11–12 (1993).

[8] La. Const. art. IX, § 1.

[9] La. Dep’t of Nat. Res., The La. Ground Water Res. Comm’n., Managing Louisiana’s Groundwater Resources with Supplemental Information on Surface Water Resources: An Interim Report to the Louisiana Legislature, Mar. 15, 2012, at 1, http://dnr.louisiana.gov/assets/docs/conservation/groundwater/12.Final.GW.Report.pdf [http://perma.cc/UDP4-XB8N]. [hereinafter Managing LA Groundwater] “Water is a conundrum, being the only natural substance that can be found in all three physical states (solid, liquid, and gas) at naturally occurring temperatures.”

[10] U.S. Dep’t of the Interior, The Water Cycle, U.S. Geological Survey (Mar. 18, 2014 10:41 EDT), http://water.usgs.gov/edu/watercycle.html [http://perma.cc/Y6K8-S5X9].

[11] The 1808 Louisiana legislature classified surface water i.e. running water and navigable rivers as common and public things insusceptible of private ownership. La. Digest of 1808 Online, Book 2, Title I, Art. III, V. However, they classified groundwater as a private thing susceptible of private ownership. Id. at Title II, Art. I.

[12] La. Civ. Code. art. 450 (2012).

[13] La. Civ. Code. art. 657 (2012).

[14] La. Civ. Code. art. 490 (2012).

[15] Managing LA Groundwater, supra note 9, at 1. Louisiana’s hodgepodge of attempted regulations triggers paradoxes like the state charging for “surface water resources that are normally in abundance, while allowing uncompensated withdrawal of groundwater resources that are often in limited supply.”

[16] Joseph L. Sax, Robert H. Abrams, and Barton H. Thompson, Legal Control of Water Resources: Cases and Materials 372–73 (2d ed. 1991).

[17] Id. at 372.

[18] Id. at 373.

[19] Id. at 372.

[20] U.S. Dep’t of the Interior, The Water Cycle, U.S. Geological Survey (Mar. 18, 2014 10:41 EDT), http://water.usgs.gov/edu/watercycle.html [http://perma.cc/Y6K8-S5X9], (Percolation also known as infiltration is the stage of the hydrological cycle when water seeps into the ground.).

[21] Sax, supra note 16, at 373.

[22] La. Dep’t of Nat. Res., For Ground Water Use Facts, http://dnr.louisiana.gov/index.cfm?md=pagebuilder&tmp=home&pid=459 [http://perma.cc/2ULW-CZ8K] (last visited Oct. 13 2015).

[23] La. State Law Inst., Report in Response to SCR 53 of the 2012 Regular Session, Apr. 4, 2014, at 1, http://www.law.tulane.edu/uploadedFiles/Institutes_and_Centers/Water_Resources_Law_and_Policy/Content/4.04.14,%20Roberson,%20Water%20Law%20Report.pdf [http://perma.cc/GH2T-GM69] [hereinafter SCR 53 Response Report].

[24] Managing LA Groundwater, supra note 9, at 64.

[25] Id. at 10.

[26] Id. at 11.

[27] Id.

[28] Id. at 10.

[29] Managing LA Groundwater, supra note 9, at 10–11.

[30] Press Release, Louisiana Economic Development, Louisiana’s Business Climate Ranks No. 1 in Nation (Aug. 1, 2014), available at http://www.opportunitylouisiana.com/index.cfm/newsroom/detail/588.

[31] Louisiana Economic Development, Louisiana: At the Epicenter of the U.S. Industrial Rebirth, 2012, http://www. opportunity louisiana.com/index.cfm/newsroom/detail/265 [http://perma.cc/EU6R-V3EP].

[32] H2Woe: Louisiana’s Water Worries, Louisiana Public Square (2012), http://www.lpb.org/index.php/publicsquare/topic/07_12_-_h2woe_louisianas_water_worries/ [http://perma.cc/542A-XJAX].

[33] See Roderic Fleming, Hydraulic Fracturing, Louisiana Water Law, and Act 955: An Irresistible Economic Force Meets an Immovable Legal Object, 24 Tul. Envtl. L.J. 363 (2011); (The best example to illustrate the fragile nature of Louisiana’s groundwater supply occurred after the discovery of Haynesville Shale in 2007.   This “modern-day gold rush” attracted many energy companies who began fracing operations and devoured much of the surrounding groundwater supply. These fracing process was essentially destroying nearby aquifers. Within one year, well owners who shared these same aquifers complained their wells had run dry.) Id. at 365.

[34] Managing LA Groundwater, supra note 9, at 10.

[35] Don Hinrichsen and Henrylito Tacio, The Coming Freshwater Crisis Is Already Here 1 Woodrow Wilson International Center for Scholars.

[36] U.S. Census Bureau, National Population Projections, U.S. Dep’t of Com. (2014), available at ftp://ftp.census. gov/pub/industry/1/~mq28a005.pdf.

[37] Hinrichsen, supra note 35, at 2.

[38] Managing LA Groundwater, supra note 9, at 16.

[39] Id.

[40] U.S. Env’t Prot. Agency Ground Water Ctr., The Importance of Water to the U.S. Economy, at i–ii, Nov. 2013, available at http://water.epa.gov/action/importanceofwater/upload/Importance-of-Water-Synthesis-Report. pdf.

[41] Id. at i.

[42] Davis, supra note 3, at 273.