Water rights for groundwater environments as an enabling condition for adaptive water governance

Despite now widespread scholarly scientific acknowledgement of the ecological importance of groundwater, progress on protecting groundwater-dependent ecosystems (GDEs) in practice has been slow. Extending the legal concept of environmental water rights from the surface water context to groundwater may help to accelerate protections and to promote adaptive water governance, particularly when combined with regulatory rules. Although some groundwater law frameworks have developed regulatory rules to protect GDEs that mirror those for surface water, they have yet to develop frameworks to support environmental groundwater rights that mirror environmental surface water rights, i.e., in-ground flow rights equivalent to in-stream flow rights. These rights are generally quantified, transferable, allow in situ use or withdrawal, and are held and enforced by an identified public or private entity. Here, I first conceptualize environmental groundwater rights and then evaluate the conceptual and practical advantages and challenges for adaptive water governance of a legal framework to support them, in a way that is intended to be relevant to diverse jurisdictional contexts. To do so, I use two existing theoretical frameworks: one for evaluating alternative approaches to providing environmental water, and the second for considering the roles of law in adaptive water governance. I find that water markets and some environmental crises may present windows of opportunity for establishing environmental groundwater rights and, thereby, local-scale thresholds of minimum protection. These rights may circumvent barriers to adaptive governance that often characterize water law. They may also facilitate adaptive governance by allowing learning, revision, flexibility, and experimentation about the environmental water requirements of GDEs to fill critical knowledge gaps. A legal framework for environmental groundwater rights can also harness and legitimize local environmental and Indigenous voices and increase access to resources. When combined with larger scale regulatory rules, such a legal framework can also help to facilitate multiscalar governance.