William & Mary Environmental Law and Policy Review


Amy Hardberger


This Article evaluates the evolution of the understanding of groundwater rights since the Day decision and assesses the relative power of property rights in groundwater that have emerged and what can be done to equalize resulting inequities. Part I reviews the current state of groundwater ownership rights and includes a brief history of litigation that led to that point. Part II explains the authority and obligations of groundwater conservation districts, which create a regulatory overlay on the common law vested rights through permitting rules and the statewide planning process. Part III summarizes the history of constitutional challenges litigated after the Day decision established a vested property right in groundwater.

Finally, Part IV presents recommendations for how litigation can also be used by landowners who seek to maintain their groundwater or protect the resource itself. First, litigants can use the obligations in Chapter 36, which find their roots in the conservation amendment, to compel GCDs to plan and permit groundwater in ways that prioritize conservation and avoid waste. Second, an examination of inverse condemnation jurisprudence provides pathways for courts to avoid requiring compensation for alleged property rights infringements. Finally, other litigation opportunities are discussed including options for impacted surface water rights holders.

This abstract has been adapted from the author's introduction.