The Fragile Future of Aquifer Storage and Recovery

Author(s)

Zachary Bray

Details

Faculty editor: Roy Brooks
Publication: Law Review
Volume: 57
Issue: 1
Start Page: 1
Month: March
Year: 2020
Type: Article
Instititional Repository (IR) location of full article: https://digital.sandiego.edu/sdlr/vol57/iss1/

Abstract

Intensifying droughts, widespread flooding, the pressures of climate change, and the steady beat of land development are taxing American water resources as never before. As a result, many communities are “mining” aquifers they have depended upon for generations at unsustainable rates. One of the most promising tools to address the growing groundwater crisis is known as “aquifer storage and recovery,” or ASR for short. The basic idea behind ASR is straightforward: when a community has excess surface water, it may be best to store it underground for future use, given the greater cost, evaporation loss, and environmental disruption associated with surface reservoirs. While this basic idea is easy to understand, and the need for ASR has increased along with the accelerating pace of extreme weather, climate change, and land development, ASR’s relatively slow growth in many parts of the country has been disappointing to many observers. Many of ASR’s supporters believe that the current federal and state legal controls for both existing and new ASR projects are too onerous to comply with and too complex to administer. But as recent work on complexity theory helps to show, much of the complexity in the federal and state law relevant to ASR is necessary to address thorny technical problems caused by some ASR projects, including but not limited to aquifer contamination. On the other hand, some jurisdictions impose unnecessary procedural complexities on ASR projects as a matter of state law, and litigation currently pending before the United States Supreme Court may impose additional procedural complexity on ASR operators under federal law. This Article addresses these and other problems that threaten the fragile future of ASR in this country, concluding with suggestions for statutory and regulatory reform of the relevant state and federal law.