Subsiding Land and Falling Ground-Water Tables: Public Policy, Private Liability, and Legal Remedy

Clark University

Subsiding Land and Falling Ground-Water Tables: Public Policy, Private Liability, and LegalRemedySource: Economic Geography, Vol. 62, No. 3 (Jul., 1986), pp. 241-253Published by: Clark UniversityStable URL: http://www.jstor.org/stable/144008 .

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SUBSIDING LAND AND FALLING GROUND-WATER TABLES:

PUBLIC POLICY, PRIVATE LIABILITY, AND LEGAL REMEDY

MICHAEL D. BRADLEY

University of Arizona

and

MICHAEL C. CARPENTER

United States Geological Survey

Physical explanations of subsidence are reviewed, and explanation is offered for the evolving doctrines of responsibility, laws of support, tort liability, and ground- water management. The study area is the American Southwest.

Subsidence of the earth's surface has caused physical and social problems for decades, yet only recently have these problems been seen as the legitimate concern of public policy makers, plan- ners, and land owners. When subsidence is caused by human actions, are we help- less or without responsibility? This is clearly not the case in our modern legal system which has assigned liabilities for subsidence-causing activities and public responsibilities when subsidence is both natural and man-made. This article will review the latest physical explanations of subsidence and explain the evolving legal doctrines of responsibility, doctrines aris- ing from the laws of support, tort liability, and ground-water management. The problems of subsidence are of increasing significance in the Southwest, so this article examines the situation in Texas, Ari- zona, and-California.

THE NATURE AND CAUSE OF SUBSIDENCE

Subsidence is a physical phenomenon with direct economic consequences. When geologic processes cause lake, bay, and ocean shorelines to sink below the water level, valuable property can be lost or damaged. Sinkholes that develop in karst terrains cause losses of subjacent support

due to natural geologic processes. When sinkholes engulf homes, automobiles, streets, or other infrastructure, the losses can be expressed directly as dollar amounts. In addition, induced subsidence from the extraction of subsurface resources such as oil and gas, water, sulphur, salt, coal, and geothermal energy can cause economic and social losses to the property of overlying land owners and adjacent owners as well. Ground-water withdrawals often occur in urbanized or economically devel- oped areas, among these are Mexico City, Mexico; Venice, Italy; Houston-Galves- ton, Texas; San Joaquin Valley, Califor- nia; and Eloy Basin, Arizona.

The causes of subsidence are relatively straightforward and well known. Poland [37] used soil-consolidation theory and the principle of effective stress [47] to account for aquifer compaction and subsidence. In a confined aquifer, fluid pressure provides support for the overlying sediments, therefore, a decrease in pressure due to pumping causes an increased stress on the matrix of the aquifer, resulting in compaction. In an unconfined aquifer, water exerts a buoyant force on the matrix. As the water table declines, buoyancy decreases in the dewatered zone, increasing the effective stress throughout the unconfined aquifer. Fine-



242 ECONoMIc GEOGRAPHY

grained materials of high porosity and low permeability usually are included in the boundaries for confined and unconfined aquifers. When the pore pressure in the aquifer decreases in the fine- grained areas, water flows from the fine-grained to the adjacent coarser zones until pore pressures equilibriate. The process may take only a few weeks or it may take decades, but it is mostly irreversible.

Earth fissuring is attributed to subsidence due to ground-water declines and is commonly found in alluvial basins in Arizona, California, and Nevada [36; 39; 31; 28]. Fissures commonly open from a few millimeters to thirty millimeters and can be several hundred meters in length [6; 7] with no strike-slip movement and dip-slip movements [6]. Fissures commonly erode into gullies of a meter or more in width and as much as fifteen meters in depth [31]. In Arizona, nearly all fissures occur in alluvium less than 300 meters thick near mountain fronts in such areas as Picacho, Casa Grande, Chandler Heights, Apache Junction, and Avra Val- ley. One fissures system near Picacho, Arizona, is 15 kilometers long and has 0.3 to 0.6 meters of vertical offset. At a U.S. Geological Survey study site on that fissure, horizontal opening of the fissure was 15 millimeters, and vertical offset was about twenty-one millimeters from June 1980 to June 1983.

It is difficult to distingish between subsidence or fissuring caused by natural aquifer drainage and induced subsidence or fissuring caused by pumping. Arizona's first known fissure near the town of Pica- cho occurred prior to major pumping and ground-water decline in the basin [32]. Some fissures associate with natural dry- ing above the water table [34]. Other alluvial basins indicate preconsolidation stress in part due to natural ground-water drainage [25]. Although measurements of horizontal strain, fissure opening, and subsidence can correlate with pumping wells, several physical factors limit the ability to assign cause and effect. Among these are: the elastic and recoverable nature of

short-term effects of pumping a single well and small well field; short-term effects on measurements of temperature, barometric pressure, and earth tides; long-term effects of regional drainage; fluctuations in recharge and seasonal water levels; and various hydrologic factors such as the effects of boundaries and geological heterogeneities.

Subsidence and fissures cause both physical and economic damage. Subsid- ence may be due to submergence, as when shore lines sink in Houston-Galves- ton, Texas, Wilmington, California, Ven- ice, Italy, and Tokyo, Japan, causing a change in property lines that are deter- mined by water boundaries. Rapidly changing boundaries that can be per- ceived are called avulsive, those changing slowly enough to be imperceptible are called nonavulsive. If land is gained or created, then the addition is termed accretion; if land is lost, then the terms are erosion or submergence. Submergence occurs by subsidence if the land sinks or by inundation if the water level rises. If a water boundary changes because of avulsive subsidence, property ownership does not change unless the prior owner fails to reclaim the land. In the case of a nonavulsive subsidence, ownership of the submerged land goes to the federal, state, or municipal government, except in Texas, where land remains the property of the prior owner if he restores it in a reasonable time [14]. Shoreline subsidence is only one problem, inland subsidence causes difficulties as well. In Ari- zona, subsidence causes well-casing fail- ures, erosion, and deposition brought about by changes in levels of streams. Subsidence results in damage by changing or reversing gradients of canals, irrigation ditches, and sewers. Costly measures are necessary in northeast Phoenix to minimize the accumulation of explo- sive gas and to maintain the flow in sewers [23]. In the Houston-Galveston area in Texas, faults have damaged houses, roads, and an airport [24; 35].

Fissuring causes additional damage; when vertical offset or shear occurs,



SUBSIDING LAND 243

damage increases significantly in buildings, petroleum-product pipelines, sewers, roads, and railroads. If pipelines and sewers rupture, aquifers can be contaminated from the direct recharge of petroleum products or sewage. In remote areas, cracks in the earth may invite unlawful and dangerous dumping of haz- ardous wastes and result in aquifer contamination. In the urbanized Tucson Basin, water table declines have led to subsidence and faulting near an area contaminated with a plume of trichloroethy- lene in the ground-water and vadose zone [13; 4; 30]. If a well field withdraws contaminated ground-water for treatment, the consequent ground-water level decline may cause further subsidence and fissuring, spreading the contamination more rapidly in the vadose zone.

THE PROBLEM OF LIABILITY

ASSIGNMENT

Subsidence problems are difficult to solve by public policy. The difficulties are matters of timing, scale, and liability. Subsidence may not occur until after an aquifer is pumped. Immediate effects are likely to be immediately corrected, but a time lag between cause and effect re- duces the likelihood of timely correction. Furthermore, the scale of subsidence may prevent an immediate response from the actor causing the problem. If pumping near the center of an aquifer produces subsidence or fissuring near the edges, a pumper may not see the direct physical cause and effect, or may not accept the responsibility for the effects. If the fissure is on another's property, then a sense of responsibility is further diluted, and the bad luck of another is seen as just that, bad luck. The question of liability becomes important: Is a pumper liable for secondary effects from his operation? If so, in what degree is he liable? How is that liability addressed? By lawsuit? By economic restitution? By voluntary restric- tions on pumping regimes?

Subsidence is an excellent example of the economic problem of negative effects

or externalities. An externality arises when an individual or firm creates through its activities a cost or benefit for another without taking this cost or benefit into account in decision making about its own production or consumption. Exter- nalities can be positive (a benefit) or negative (a cost) and can involve market or physical interactions [38]. Subsidence creates not only physical and financial consequences; in fact, it creates a political externality as well. A well that is pumped under a public permit may cause the same physical effects as any other well. If the permit process excluded or ignored the voice of the party affected by subsidence, then a political externality has been created. Externalities are solved or "internalized" when the decision boundaries are expanded to include both the producing and the receiving parties and the effects upon the one fully considered in the decisions of the other [38].

In market situations externalities are internalized by the operation of expanded market mechanisms, but many subsidence problems arise under conditions of minimal market linkage. Sometimes no market exists at all, or market exchanges cannot resolve the grievance. When markets fail, alternative institutions must manage the dispute between the pumper and the damaged landowner. Therefore, the policy problems caused by subsidence are most frequently handled by the courts in lawsuits over liability and damages under tort law doctrines, the laws of support, and various statutes governing ground-water or petroleum withdrawal. Tort law, support doctrine, and case law form the essential background for the understanding of modern subsidence policy.

LAWS OF SUPPORT

Damages caused by subsidence can be recovered in civil courts under the legal doctrines of lateral or subjacent support [8]. Together these are the law of support. The law recognizes both lateral or side bearing and subjacent or underlying




support, and protects a landowner from the loss of either or both. In general, one who causes a loss of lateral support is absolutely liable, in the absence of negligence or malice, for damages to the land. In Texas, an owner has the right to lateral support, injunctive relief against its loss, or an award of damages, irrespective of negligence [43].

Doctrines on the loss of lateral support are relatively simple, while those dealing with subjacent support are more compli- cated. In some states, the common law of reasonable use or correlative rights applies to subjacent support loss, and the circumstances of each case are weighed by the reviewing court. In Texas, there is no recovery if the removed resource was water, but there can be recovery if the removed resource was coal. In other cases involving mineral resources, one removal of subjacent support was an absolute liability, and damages were awarded to return the land to its natural condition. In some mineral cases, there was no recovery for the surface owner where subsidence was a natural and inevitable result of mining by the only known com- mercial method [43]. The laws of support also include the doctrine of torts, espe- cially negligence, nuisance, and trespass.

A tort is a wrongful act, in the absence of a contract, that results in damage or injury. The major torts are nuisance trespass, and negligence. A nuisance is a wrong resulting from unreasonable, unwarrantable, or unlawful use by a person of his own property. A nuisance may be private or public depending on whether it affects a definite or indefinite number of persons in a community. Nui- sance generally requires an unlawful act, but in some cases may be recognized in the absence of an unlawful act. A court will consider the act itself, the place, and the circumstances, balancing equities between each property owner asserting his rights to use his own land in determining whether a given act constitutes a nuisance. The defense that an individual purchased property with the knowledge of the existence of a nuisance, termed

coming to a nuisance, is not usually sufficient to prevent abatement or recovery of damages [45].

Structural damage can be recovered under the doctrine of negligence. Negli- gence deals with the failure to exercise reasonable care in human affairs. In general, the term refers to that delinquency resulting when a person fails to exhibit care, whether it be slight, ordinary, or great. Negligence is the failure to observe or perform a legal duty owed another that results in injury to the other. The act may be one of either omission or commission. For a defendant to be held liable under negligence, his act must be the proximate cause of the injury. In addition, the defendant must be shown to have departed from reasonable and prudent behavior under the circumstances. The doctrine of res ipsa loquitor, the thing speaks for itself, applies when the plaintiff can produce sufficient facts to warrant an infer- ence of negligence. For this, the plantiff must show that the instrumentality which caused the injury was under the exclusive control of the defendant and that, under ordinary circumstances, no injury would have occurred if the defendant had used proper care. Defenses against negligence include contributory negligence on the part of the plaintiff and assumption of risk [45]. Commonly, subsidence cases are brought under nuisance and negligence.

Thus, a pumper can be held negligent if his pumping damages another's building. One factor affecting recovery is whether the weight of the structure contributed to the failure of the land surface. The recovery of damages is further conditioned: in some cases, builders have at their own expense provided shoring of adjacent land owners' buildings, even though some ordinances and statutes exonerate a builder if he notifies his neighbor and is not negligent [8]. Other statutes allow a recovery that depends on the depth of the excavation. The doctrine of negligence is broad enough to cover many problems and to deal with situations where reasonable care has not be exercised.

Trespass is an invasion of another's



SUBSIDING LAND 245

rights as the result of an unlawful act. Trespass may be to personal property, to the person, or to realty. Trespass to realty includes injury to or interferences with another's possessions below ground [45]. Trespass may be invoked along with subjacent support in subsidence cases.

General tort doctrines are valuable, but specific problems tend to require more direct and specific legal provisions for their resolution. A thirty-year evolution in tort law has taken place with more general provisions being replaced with more specific ones. The American Law Insti- tute, an advisory organization that published a Restatement of Torts in 1939 and a Restatement (Second) of Torts in 1969, included in each volume guidelines on subsidence. Each contained recommendations for wording of new statutes and court decisions. Although the restate- ments are not themselves law, they have influenced the development of statutes and court decisions. Interestingly, the institute's position on subsidence has reversed. In 1939 the institute stated: "To the extent that a person is not liable for withdrawing subterranean waters from the land of another, he is not liable for a subsidence of the other's land which is caused by the withdrawal." In 1969, the institute recommended instead: "One who is privileged to withdraw subterranean water, oil, minerals or other substances from under the land of another is not for that reason privileged to cause a subsidence of the other's land by such withdrawal" [2; 3]. The institute's changed position is significant in that it suggests a clear and direct legal duty to refrain from causing subsidence.

GROUND-WATER LAW

Another source of statutory guidance in subsidence conflicts is the ground-water law. Ground-water in the United States is governed by four major doctrines: the English rule of capture, the American rule of reasonable use, correlative-rights doctrine, and appropriative-rights doctrine [46]. The English rule, observed in Texas

and many Midwestern and eastern states, derives from the English case of Acton v. Blundell [1] in which a quarry owner was sued because dewatering the quarry dried up a neighbor's well. The court held that a landowner has the right to absolute ownership of all the water he can capture which percolates under his land. The injury was termed damnum absque injuria, or injury without damage, indicating that there is no remedy under the law for the injury or damage suffered. Injury sustained can take many forms, such as a dry well, greater lift costs, or even subsidence as in the Maryland case of Finley v. Teeter Stone, Inc. [15]. Pumping can be for the sale of water, irrigation, or mine and quarry dewatering. The strength of this doctrine is exemplified by courts granting summary judgements and refusing to try cases brought before them for subsidence (Friendswood Development Company v. Smith Southwest Industries, Inc., [16]).

The American rule of reasonable use holds in parts of Arizona and several other states. A modification of the English percolating-water rule, it provides for a case-by-case determination of the reasonable use of water. Wanton waste and ma- licious use are excluded from reasonable use, as are transport and sale of water in some jurisdictions. Large losses through unlined canals, irrigation tail water, and inefficient irrigation practices, however, are usually considered to be reasonable use.

California adheres to the correlative- rights doctrine, which is an application of riparian law to ground-water [43]. Land- owners over a common aquifer are considered joint tenants entitled to a propor- tionate share of the ground-water for beneficial use on overlying lands. Excess water not needed by overlying landowners can be appropriated for use else- where. In times of shortage, overlying landowners take reduced, fair, and pro- portionate shares. In addition, lowering ground-water levels is considered unreasonable and can be enjoined even in the absence of injury (City of Pasadena v. City of Alhambra, [9]).




Other western states, including New Mexico, adhere to the doctrine of prior appropriation for ground-water. This doctrine holds "first in time, first in right." The system deals with water shortages on the basis of seniority and is commonly administered by the state engineer [46]. Moreover, the appropriations doctrine conditions rights upon beneficial use; that is, a right to water can only develop for beneficial rather than wasteful or unreasonable uses. While rights may transfer among locations or uses, the rights usually transfer by leases or purchases from the holder. Transfers are carefully administered by the state engineer in order to avoid damage or loss to any either rights holders in a basin. And rights must be continually applied to beneficial use, otherwise they are subject to forfeiture or abandonment. The appropriations doctrine of water rights allocates scarcity among users in arid environments by principles derived from the physical real- ity of the Southwest. Although commonly applied to surface waters, the appropriations doctrine frequently applies in highly modified form to ground-water resources. Sometimes states have an appropriation system for surface water and another doctrine for ground-water, such as Cali- fornia, Arizona, and Texas. The ground- water doctrine is critically important for determining when and how subsidence issues will be addressed, and since doctrines vary state-by-state, little generali- zation seems possible.

COMMON LAW DOCTRINES

In addition to the general tort doctrines of nuisance and negligence and the state laws of ground-water allocation, other guidelines have evolved through the common law. In case-by-case decisions judges have directed their attention to subsidence controversies, handing down opinions in lawsuits and appeals that ex- press reasoned decisions upon difficult questions of liability, responsibility, and compensation. A substantial literature of opinions has accumulated that cannot be

entirely reviewed here. Instead, attention will be directed to one opinion from Texas that addresses subsidence problems by developing an interest rather than a direct solution. This opinion en- courages the legislature to solve the com- plex physical problem of subsidence and supports the development of public policy through the state legislatures, not the courts. Many commentators support such an approach, but when the courts themselves draw attention to the problem, corrective or initiating legislation is more likely to result.

In Friendswood Development Com- pany v. Smith Southwest Industries, Inc. [16] Smith Southwest Industries and others along the west shore of Galveston Bay brought a class action lawsuit against Friendswood Development Co. and its owner Exxon Corp., alleging that defendants' pumping of ground-water for sale caused severe subsidence of plantiffs' lands. The suit was brought under laws of support, negligence, and nuisance. Plain- tiffs alleged that defendants' wells were too closely spaced and too near their common land boundary. They also alleged that the defendants pumped exces- sive quantities with foreknowledge from engineering reports that such pumping would cause subsidence and flooding. Defendants contended that subsidence was a problem in the area before they started pumping and that pumping from other wells in the area contributed to the subsidence. The trial court granted a summary judgement for the defendants, citing Acton v. Blundell [1] and the doctrine damnum abs que injuria. The appel- late court reversed and remanded, holding that a cause of action existed in nuisance and negligence. The Texas Su- preme Court reversed, affirming the summary judgement of the trial court [16; 48].

In its holding, the Texas Supreme Court applied the law to this case as it was at the time of the suit and as it was from 1964 to 1971 when most of Friendwood's wells were drilled. The court cited as too late to affect this case both the Restatement (Sec-



SUBSIDING LAND 247

ond) of Torts [3] and a subsidence amendment in the General and Special Laws of the State of Texas [18]; however, the- court held that negligence would be added to malice and willful waste as a cause of action. Regarding the legislation creating Underground Water Conserva- tion Districts and the Harris-Galveston Coastal Subsidence District, the court stated: "Providing policy and regulatory procedures in this field is a legislative function. It is well that the Legislature has assumed its proper role, because our courts are not equipped to regulate ground water uses and subsidence on a suit-by-suit basis" [16].

The court's statement expresses a common recognition among jurists for the importance of administrative and legislative discretion. Courts hesitate to im- pose their will upon choices that are clearly the legislature's responsibility or that are within the technical expertise of an administrative agency. If problems such as subsidence need legislation for effective solution, then the statutes should come from legislatures not judges. Sev- eral authors have indicated the need for effective statutes to control or prevent subsidence [11; 14; 41; 33; 29]. It is more significant that courts have expressed the need as well (Houston and Texas Central Railroad v. East, [27]; Finley v. Teeter Stone, Inc. [15]; Friendswood, [16]).

In response to the recognized need for subsidence law, several states have devel- oped legislation that deals, at least in part, with the physical problems of sinking land. Some laws are specific while others address the issues as part of other initiatives, such as ground-water law development or reform. Regardless of form, most state legislation grows out of a recognition that effective management requires day-to-day policy and decisions from administrators with expertise in geology and engineering. The absolute dependence upon courts and lawsuits is giving way to subsidence management as a public responsibility.

STATE SUBSIDENCE LEGISLATION

A brief review of subsidence law in California, Texas, and Arizona reveals common approaches to solving subsidence problems. While detailed description will be avoided, enough specifics will be provided to explain local and special district management along with subsidence avoidance as part of relatively intensive ground-water planning and management.

Subsidence management in California involves both a subsidence statute and water districts. The Anti-Subsidence Act of 1958 was designed to maximize production of oil and gas fields, but provides for a cause of action when there is a direct violation of an order or decision of the state oil and gas supervisor [42]. The act assigns liability for withdrawal of subjacent support only in case of negligence, but provides a penalty of $1000 per day per act of violation [11]. In addition, Cali- fornia leads the nation in the development of local management to control subsidence damage, most often in the form of a special purpose district. Using public regulations, economic incentives, and enforcement standards, the control districts attempt to bring subsidence under control by avoiding the damage of fissuring and land sinking. Not all of the districts have subsidence control as a single responsibility; indeed, many have primary responsibilities for water conservation, or reclamation, or delivery to consumers, be they irrigators or urban users. Districts in California are often multi-purpose organi- zations, performing more than one con- current function or purpose [21]. For example, the Orange County Water District levies a pump tax on ground-water pumping, imports water for uses including artificial recharge, and requires peri- odic reports of ground-water production; however, it also recharges ground-water to create a barrier to sea water intrusion and operates its facilities to avoid or control land subsidence. In the San Gabriel Valley, a pumping charge is used to en- courage safe yield and a recharge program, effectively controlling ground-water storage in the basin. Since overdrafts are reduced, the damages from land sub-



248 ECONOMIc GEOGRAPHY

sidence are reduced also. A Governor's Commission to Review California's Water Rights Law has recommended legislation that would give a state power to select an appropriate local agency to manage a ground-water basin or to form a ground- water management district. The management authority could regulate storage and use, buy, sell, and exchange water rights, and limit pumping in response to such adverse effects as long-term overdraft and subsidence. Farmers have not supported the legislation because they perceive it as fostering bureaucracy and leading to more expensive water [29].

Texas has combined a minor subsidence provision in the Texas Water Code with a special act creating a subsidence district in an attempt to bring subsidence under control [18; 19]. The Texas Legisla- ture, in 1949, provided for the creation of Underground Water Conservation Dis- tricts (UWCD's) for ". . . conservation, presevation, protection, recharging, and prevention of waste of underground water. . . ," While confirming private ownership of ground-water [17]. This chapter was amended, "To prevent drawdown, and to control subsidence and to prevent waste, 'the district may provide for the spacing of water wells and may regulate the production of wells,"' [17; 49]. Al- though they have the authority, none of eight UWCD's has ever regulated pumping [48]. In 1975, the Texas Legislature passed the Harris-Galveston Coastal Sub- sidence District Act that empowered the district to space wells, regulate pumping, meter wells, require annual reports of pumping, and collect permit fees not to exceed "'110 percent of the highest rate charged by the city of Houston for surface water to its customers"' [19; 48]. The district is governed by a 15-member board appointed by mayors and commis- sioner's courts in the two counties. Agri- cultural and industrial interests are as- sured at least one representative on the board. Stiff penalties and injunctive relief are-provided for violations of the act or rules of the district. Agricultural interests were able to exclude an ad valorem tax

from the act, decreasing its effectiveness in internalizing costs and providing incentives for switching to surface water. Moreover, a subsequent amendment limited the permit fee for agricultural users to a maximum of 70 percent of that for other users [20; 48]. The district has used its power to reduce pumping and has required some cities and industries to switch to surface water. A decrease in pumping by nearly 20 percent has caused water levels to stabilize in many areas with a consequent decrease in subsidence rates. The district has been challenged and upheld in the courts (Beckendorff v. Harris-Galveston Coastal Subsidence District [5] ).

Local districts are not the only way to manage subsidence. The 1980 Arizona Ground Water Management Act was based upon recommendations of the 25- member Ground Water Management Study Commission which included re- presentatives from cities and towns, mining, agriculture, Indian communities, and electric utilities [40]. The act mentions subsidence only three times (s45-402, s45-603), but because the act is designed to establish safe yield in ground-water basins, measures that will control ground- water level declines will control subsidence.

The act provides for Active Manage- ment Areas (AMA's) and Irrigation Non- Expansion Areas (INA's) administered by regional offices of the newly formed Department of Water Resources. Four initial AMA's cover Tucson, Phoenix, Pres- cott, and Pinal County (s45-411A). These four areas contain more than 80 percent of the state's population and account for about 70 percent of the state's ground- water overdraft. The state director may designate subsequent AMA's, after public hearings and with due process, if it is de- termined that, among other reasons, land subsidence or fissuring is endangering property or potential ground-water storage capacity (s45-412). The director may designate subsequent INA's if, "There is insufficient ground-water to provide a reasonably safe supply for irrigation of



SUBSIDING LAND 249

the cultivated lands in the area at the current rate of withdrawal," and ". . . estab- lishment of an active management area... is not necessary" (s45-432). There are provisions for local designations of AMA's and INA's (s45-415, s45-433) and conver- sion from INA's to AMA's (s45-439).

The target date for safe yield in the Tucson, Phoenix, and Prescott AMA's is on or before January 1, 2025. Five management periods-1980-1990,1990-2000, 2000-2010, 2010-2020, and 2020-2025- are to be used to implement increasingly stringent conservation measures. Conser- vation programs for non-irrigation uses of ground-water include non-specific reductions in per capita use for municipalities. For industries, the program requires the use of ". . . the latest commercially available conservation technology consistent with reasonable economic return" (s45- 564). Conservation for irrigated agriculture will be achieved by reductions in ground-water allotment, termed irrigation-water duty, based on the necessary quantity of water needed to irrigate the crops historically grown in the farm unit, assuming ". . . maximum conservation consistent with prudent long-term farm management practices within areas of similar farming conditions, considering the time required to amortize conservation investments and financial costs" (s45- 565). In the third management period". . . the director may adjust the highest twenty-five percent of the water duties within the sub-basin to more clearly reflect the average of the middle fifty percent of the water duties within the sub-basin" (s45- 566). Later management periods include programs for augmenting water supplies including incentives for artificial recharge (s45-565) and for purchase and retire- mnent of grandfathered water rights (s45- 567).

The act provides for levying and col- lection of a fee between $0.50 and $1.00 per acre-foot (1233 M3) of ground-water pumped per year for administration and enforcement of the act, to as much as $2.00 pe acre-foot per year for augmenta- tion of the water supply of an AMA, and,

no earlier than January 1, 2006, as much as $2.00 per acre-foot per year for purchase and retirement of grandfathered rights (s45-611).

Violators of the act are subject to cease and desist orders issued by the director, preliminary or permanent injunctions from the superior court, and civil and criminal penalties. Civil penalties have a maximum of "ten thousand dollars per day of violation directly related to illegal withdrawal, use, or transportation of ground-water" and a maximum of $100 per day for other violations (s45-635). Class 6 felonies include falsifying or tam- pering with a measuring device and know- ingly withdrawing 1000 acre-feet or more of ground-water in violation of the act. Illegal withdrawals of smaller quantities are misdemeanor offenses (s45-636).

The act has been challenged and upheld in the state courts (Clifton N. Cherry v. Wesley E. Steiner, [10]). In Cherry v. Steiner, plaintiffs, who reside in the Pres- cott AMA, claimed in the United States District Court that the 1980 Arizona Ground Water Code violates due process and equal protection under the United States Constitution. The trial court granted summary judgment to the defendants. The United States Supreme Court refused without comment to hear the case. An important aspect of the act is its non-severability: "If any portion of this act is finally adjudicated invalid, the en- tire act shall be null and void" (s45-401). This non-severability was included in the act to protect agricultural, municipal, and mining interests, all of which had made concessions to allow passage of the bill. In addition to court challenges of the statute, suits based on the statute are being brought-Cortaro Water Users' Associa- tion v. Wesley E. Steiner, City of Tucson, [12]. In this case, a partial summary judgment was granted for the plaintiffs who appealed from the Department of Water Resources' decision to issue drill- ing to the City of Tucson outside its service area.

In addition, the State of Arizona and the National Geodetic Survey, with ad-




vice from an interagency Land Subsid- ence Committee, have submitted a subsidence monitoring plan to the Governor of Arizona. The plan summarizes known subsidence in the state and recognize haz- ards for canals, pipelines, wells, etc. caused by subsidence, differential subsidence, and earth fissures. The objectives of the plan are: "Documentation of the location and magnitude of existing subsidence and subsidence-induced earth fissures. Development of procedures for estimating future subsidence as a function of water level decline and defining probable areas of future fissure development." The plan proposes a central facility at a state agency for compilation and organization of leveling, compaction, gravity, and other geophysical and strati- graphic information. There would be coordinated analysis of existing data to produce initial estimates of future subsidence and earth-fissure development and identify additional observation require- ments. Other provisions include: "An initial observation program designed to ob- tain a limited amount of additional leveling data, gravity observations, compaction measurements, and horizontal strain determinations. A cooperative effort between state and federal agencies to evaluate new measurement technologies which offer the potential of being faster and more cost effective than current meth- ods of subsidence monitoring." Also included are proposals for directions in research, some initial monitoring plans, and an advisory committee to oversee the formation of the central data facility and provide continuing guidance [44].

DISCUSSION

The effort to control subsidence and resulting damages is in its infancy. Effec- tive measures to prevent subsidence or provide damages and compensation will become increasingly important as the problem becomes more acute. Long- range planning will be needed to arrive at corrective measures that equitably dis- tribute risks and costs. Left unaddressed,

the problem of subsidence could result in significant damage to our social and economic infrastructure in spite of current efforts to control ground-water pumping. Annual water level declines in subsiding basins in Arizona range from less than 1 m to more than 3 m per year. If safe yield is not achieved until the year 2025 and the mean rate of water-level decline is halved in each of the management periods, the total expected ground-water level decline might range from 20 m to 60 m. Assuming a virgin specific compaction of 0.02 m of subsidence per meter of ground-water level decline, 0.4 m to 1.1 m of subsidence could occur [4].

Although the location of the subsidence directly correlates to the severity and to the economic cost of subsidence damage, this is of little relief to water officials, since much ground-water overpumping occurs in the urban, rapidly-growing regions. In many cities efforts to plan for avoiding subsidence problems remain minimal. Since the economic damage is local, city and county land-use planning needs to be directly involved; ironically, most of the physical consequences are long-range and irreversible, this means that the planning process needs to develop appropriate planning horizons. Since many of the economic consequences are negative externalities and not internalized by the operation of either the land or water markets, the costs of damage need to be calculated into future economic development.

Clearly the best way to correct the damages from land subsidence is to avoid them completely, if possible. If avoidance fails, then incentives to change pumping patterns may be necessary, along with compensation for economic or social loss. Both California and Texas are developing subsidence management programs that combine economic incentives and regulations. In Arizona, the state subsidence-monitoring plan deals in a limited way with horizontal deformation and stress-strain modeling, but it does not address abatement or control of subsidence. Moreover, the state agency that will



SUBSIDING LAND 251

probably administer the subsidence plan is the Department of Water Resources, which administers the Ground Water Management Act. Thus, subsidence planning and management will remain a secondary function of ground-water management. So far, the benefits and costs of either approach remain unclear. Only a period of sustained experience in subsidence management will show whether districts or ground-water planning and management is the most effective approach to the problem.

What seems clear so far is the societal cost of not dealing directly and rationally with land subsidence. By far the greatest loss to society has been the opportunities foregone, those alternatives of creative planning and management unrealized due to our unawareness of the scope of the problem. By not dealing with subsidence early, we lose options for correction and control. We not only lose initiatives as the possible corrective strategies that are generally less expensive earlier on, we also lose available resources that may be assigned alternative uses by market eco- nomics or public policy. A good example is the new federal ground-water protection strategy, which defines and protects drinking water, while calling saline or contaminated ground-waters of limited beneficial use. Yet these waters, rationally planned and coordinated, might be the best resource to economically repressur- ize declining aquifers and prevent subsidence damage. In detailing a water quality protection strategy, we may be substitut- ing one problem for another. Surely the wisest use of all our waters will involve a planning process sufficient to vision problems and solutions holistically and not in isolation.

Land subsidence due to ground-water withdrawal is a relatively recent problem made difficult by the scale of physical effects in a water system and by the economic consequences of externalities and non-market relationships. To deal with sub-surface support and the avoidance of subsidence damage is one of the most important geo-political problems of our

future. We deserve rational subsidence planning and management.

LITERATURE CITED

1. Action v. Blundell. 152 ENG REP 1223, 1843.

2. American Law Institute. Restatement of Torts, s818, 1939.

3. American Law Institute. "Withdrawing Subter- ranean Substances," Restatement of the Law Second Torts, Tentative Draft, No. 15, Ch. 39, Topic 1, s818, pp. 1-5, 1969.

4. Anderson, S. R., H. H. Schumann, and B. L. Wallace. Progress Report on Measurement of Aquifer Compaction in the Tucson Basin. An- nual Static Water Level Basic Data Report Tuc- son Basin and Avra Valley, Pima County, Ari- zona, 1982.

5. Beckendorff v. Harris-Galveston Coastal Sub- sidence District. 558 SW 2d 75,77,78; 563 SW 2d 239, 1978.

6. Boling, J. K., Jr. and M. C. Carpenter. "Small Scale Movements of Earth Fissures in South- Central Arizona," Geological Society of Amer- ica, Abstracts with Programs, 10 (1978), No. 3, p. 97.

7. Carpenter, M. C. and J. K. Boling, Jr. "Charac- ter of Earth Fissure Movement in South-Central Arizona," Journal of the Arizona-Nevada Acad- emy of Science, 15 (1980), p. 49.

8. Casner, A. J. Supplement to American Law of Property. Boston: Little, Brown, p. 1404, 1977.

9. City of Pasadena v. City of Alhambra. 33 Cal 2nd 908: 207 P 2nd 17, 1949.

10. Clifton N. Cherry v. Wesley E. Steiner. U.S. District Court for the District of Arizona, No. CIV 81-719 PHX CAM, Opinion and Order, p. 30, 1982.

11. Compton, R. L. "The Right to the Subjacent Support of Oil and Gas," 49 (1961), California Law Review, p., 354-67.

12. Cortaro Water Users' Association v. Wesley E. Steiner. Maricopa County, State of Arizona Su- perior Court Decision, p. 2, 1983.

13. Davidson, E. S. Geohydrology and Water Re- sources of the Tucson Basin, Arizona. U.S. Geo- logical Survey Water Supply Paper 1939-E, 1973.

14. Davis, L. E. "Subsidence: Settling Down Within the Laws of Accretion, Reliction, Erosion, and Submergence," 28 (1976), Baylor Law Review, pp. 319-37.

15. Finley v. Teeter Stone Inc. 251 Md 428; 248 A 2nd 106, 1968.



252 ECONOMIc GEOGRAPHY

16. Friendswood Development Company v. Smith- Southwest Industries, Inc. 546 SW 2d 890; 576 SW 2d 21, 1978.

17. General and Special Laws of the State of Texas. "Underground Water Conservation Districts- Organization-Powers," Ch. 306, pp. 559-64, 1949.

18. General and Special Laws of the State of Texas. "Water Districts-Underground Conservation Creation-Powers and Duties," Ch. 598, s52.021, p. 1641, 1973.

19. General and Special Laws of the State of Texas. "Harris-Galveston Coastal Subsidence District," Ch. 284, pp. 672-84, 1975.

20. General and Special Laws of the State of Texas. "Harris-Galveston Coastal Subsidence District Reduction in Ground Water Withdrawal," Ch. 557, pp. 1390-91, 1977.

21. Goodall, Merrill R., J. D. Sullivan, and T. De Young. California Water: A New Political Economy. Montclair, NJ: Allanheld, Osmun and Company, 1978.

22. Ground-Water Protection Strategy. U.S. Envi- ronmental Protection Agency, pp. 1-55, 1984.

23. Harmon, David B. "Subsidence in Northeast Phoenix," Fieldnotes from the Arizona Bureau of Geology and Mineral Technology, 12 (1982), No. 3, pp. 10-11.-

24. Holzer, T. L. "Ground Failure in Areas of Sub- sidence Due to Ground-Water Decline in the United States," Land Subsidence Symposium, International Association of the Science of Hy- drology, Pub. 121, 1976.

25. Holzer, T. L. "Preconsolidation Stress of Aqui- fer Systems in Areas of Induced Land Subsid- ence," Water Resources Research, 17 (1981) No. 3, pp. 693-704

26. Holzer, T. L. "Ground Failure Caused by Ground-Water Withdrawal From Unconsoli- dated Sediments-United States," Third Inter- national Symposium on Land Subsidence, In- ternational Association of the Science of Hly- drology, 1984.

27. Houston and Texas Central Railroad v. East. 98 Tex 146; 81 SW 279, 1904.

28. Jachens, R. C., and T. L. Holzer. "Geophysical Investigations of Ground Failure Related to Ground-Water Withdrawal," Ground Water, 17 (1979), pp. 574-85.

29. Kopper, William and Donald Finlayson. "Legal Aspects of Subsidence Due to Well Pumping," Journal of the Irrigation and Drainage Division of the American Society of Civil Engineers, 107 (1981), No. IR2, pp. 137-49.

30. Kreamer, D. K. "An Evaluation of Selected Halocarbons and Trace Gases for Potential Use a Indicators of Groundwater Movement and Source (and Contaminant Movement in the Va- dose Zone)," Completion Report for the U.S. Department of the Interior, Project No. A-ill- ARIZ, 1983.

31. Laney, R. L., R. H. Raymond, and C. C. Win- ikka. "Maps Showing Water-Level Declines, Land Subsidence, and Earth Fissures in South- Central Arizona," U.S. Geological Survey Water Resources Investigations 78-83 Open File Re- port, 2 sheets, 1978.

32. Leonard, R. J. "An Earth Fissure in Southern Arizona," Journal of Geology, 37 (1929) No. 8, pp. 765-74.

33. Morris, Jennele. "Subsidence: An Emerging Area of the Law," Arizona Law Review, 22 (1980) pp. 891-917.

34. Neal, J. T., A. M. Langer, and P. F. Kerr. "Giant Dessication Polygons of Great Basin Playas," Geological Society America Bulletin, 79 (1968), pp. 69-90.

35. Neighbors, R. J., and R. E. Thompson. "Subsid- ence in the Houston-Galveston Area of Texas," Third International Symposium on Land Subsid- ence, International Association of the Science of Hydrology, 1984.

36. Peterson, D. D. "Earth Fissuring in the Picacho Area, Pinal County, Arizona," University of Ari- zona, unpublished M.S. thesis, 1962.

37. Poland, J. F. "Status of Present Knowledge and Needs for Additional Research on Compaction of Aquifer Systems," Land Subsidence, Interna- tional Association of the Science of Hydrology, (1969), Pub. 88, pp. 11-21.

38. Russell, Clifford S. "Externality, Conflict, and Decision," Regional Conflict and National Pol- icy. Edited by K. A. Price. Washington, 1). C.: Resources for the Future, 1982.

39. Schumann, lI. lI. and J. F. Poland. "Land Sub- sidence, Earth Fissures and Groundwater Withdrawal in South-C(entral Arizona, U.S.A., Land Subsidence, International Association of the Science of Hydrology, 1 (1969) Pub. 88, pp. 295-302.

40. Session Laws State of Arizona. Fourth Special Session: Ch. 1, "Groundwater Code," Ch. 2, s45-401-s45-637, pp. 1339-1458, 1980.

41. Singer, Rita. "Legal Implications of Land Sub- sidence in the San Joaquin Valley," Land Subsid- ence Symposium, International Association of the Science of Hydrology, Pub. 121, pp. 609-15, 1976.



SUBSIDING LAND 253

42. Statutes and Amendments to the Codes of Cali- fornia. "Anti-Subsidence Act": First Extraordi- nary Session, Ch. 73, Sec. 1, pp. 280-304, 1958.

43. Steelhammer, R. H. and J. CG. Garland. "Subsid- ence Resulting from the Removal of Ground Waters," South Texas Law Journal, 201 (1970), pp. 210-13.

44. Strange, W. E. "Subsidence Monitoring for the State of Arizona," National Geodetic Informa- tion Center, NOAA, Rockville, MD, 20852, 1983.

45. Sullivan, T. F. P. Environmental Law Funda- mentals. Environmental Law Handbooks, Gov- ernment Institutes Inc., Washington, D.C., 1976.

46. Tank, R. W. Legal Aspects of Geology. New York: Plenum Press, 1983.

47. Terzaghi, Karl. "Principles of SPil Mechanics: IV, Settlement and Consolidation of Clay," En- gineering News-Rec., November 26, pp. 874- 78, 1925.

48. Teutsch, John. "Controls and Remedies for Ground Water-Caused band Subsidence," Houston Law Review, 16 (1979), pp. 283-331.

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50. U.S. Environmental Protection Agency. Ground Water Protection Strategy. Washing- ton, D.C . Office of Ground-Water Protection, August, 1984.



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Subsiding Land and Falling Ground-Water Tables: Public Policy, Private Liability, and Legal Remedy

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