By Alexander Kolodin |

From harvesting timber in national forests to grazing cattle on the open range, our nation has faced many tragedies of the commons over the years. Whether hunting big game in the wild or extracting oil and gas from underground reservoirs, each example presented our leaders with the same, fundamental issue: if nobody owns it, everyone will overuse it. 

For rural Arizona, groundwater is no different. As explained in Part 2, Arizona’s groundwater challenges are a tragedy of the commons, stemming from the fact that groundwater is a finite resource with multiple landowners on the surface, any one of whom can tap into the common supply. 

How we approach this tragedy moving forward will determine not only the health of the aquifers but also the future of our rural communities. While some proposals have been offered to date, none have been sufficient to earn legislative support, and most have been wrong for our state. 

To get it right, we must consider the approaches that have been taken in other contexts to see which have worked and which have not, allowing us to determine which could be the best fit for groundwater. 

There are generally two approaches

According to Dr. Stephen Hicks—professor at Rockford University, critic of socialism, and supporter of individual rights—every solution for the tragedy of the commons falls into one of two categories: a socialist approach and a property-based approach. 

The socialist approach views self-interest as the problem. It seeks to control human behavior through mandates, permits, and fees. Whether renewable energy standards for climate, catch limits for fisheries, or sustained yield mandates for national forests, all prioritize resource preservation through government control—maintaining communal ownership and regulating beneficial use through bureaucrats who decide who can use what, when, and how much.

The property-based approach, on the other hand, views communal ownership as the problem. It seeks to eliminate the tragedy by establishing private property rights to the resource, allocating individual shares and allowing users to manage and conserve their own supplies, limited only by the fundamental principles of private property rights, such as the “no harm” principle and “right to exclude.” 

Mining claims have operated on “first in time, first in right,” and grazing allotments grant exclusive rights to leaseholders, thereby reducing conflicts among users and making individuals responsible for their own supplies.

To address rural groundwater, Arizona leaders must decide which of these approaches they will take. 

Socialist options don’t work

Quod nullius est, est domini regis. It means: “What is the property of no one, belongs to the king.”

In 1976, after the Arizona Supreme Court declared groundwater a public resource, the Court said: “The legislature has the authority to determine which groundwater uses are most important to the general welfare and to allocate the state’s groundwater resources accordingly.” 

This statement illustrates the truth about communal ownership: if no one owns the resource, then the government has absolute authority to act as king over its use. This is why the Arizona Department of Water Resources frequently reminds landowners that their right to use water is only “usufruct” to the land they own: meaning they don’t own the groundwater itself, the state does.

Like wild animals in Old England, communal resources belonged to the Crown—hunters could only hunt when, where, and how the king said they could. Those systems, like today’s socialist groundwater regimes, treat resources as communal property controlled by government fiat.

Such approaches typically fail because they lead to higher scarcity, higher prices, and worse outcomes for the resource itself. The federal government’s centralized control over national forests, for example, has produced catastrophic wildfires, endangered protected species, and restricted affordable timber.

In Arizona, the infamous “management area” is the hallmark socialist approach to groundwater— including 1948 “Critical Management Areas” and 1980 “Active Management Areas.”

According to Dean E. Peterson and Larry L. Deason in Arizona’s Groundwater Problem & Proposed Legislation, the 1948 Critical Management Areas “did not adopt any of the basic principles of water law,” but rather were an “exercise of the general police power of the state” through centralized restrictions.

In 1980, Arizona doubled down on its socialist approach with the Groundwater Management Act, establishing “Active Management Areas” that centralized control into the Arizona Department of Water Resources. This gave the agency near-absolute power over groundwater in AMAs, allowing its director to effectively act as king over the common supply.

In both cases, users rushed to drill before grandfathering deadlines, and corporate and municipal users entrenched their historical pumping, distorting market incentives. After 40 years, the 1980 Act has failed to achieve “safe yield” in most AMAs.

Despite their clear failures, proponents today continue to argue that Arizona should “finish what was started” with the 1948 and 1980 groundwater acts by expanding socialist-style control statewide through “Rural Groundwater Management Areas” and “Local Groundwater Stewardship Areas.” 

These proposals must be rejected, as they would only impose new bureaucracies, tax personal groundwater withdrawals, and mandate volumetric reductions while maintaining the same communal ownership model that led to the tragedy in the first place. 

Property-based solutions are best

Meum et tuum. It means: “What’s mine is mine, and what’s yours is yours.”

According to John Locke in his Second Treatise on Government, the role of government is not to seek to control human behavior, but rather to protect private property by using the limited power of government to quantify and secure individual rights, prevent takings, support transferability, and uphold the “no harm” principle and biblical golden rule between and among property owners.

Rather than mandating conservation through coercion, property-based systems embrace human nature and seek to harness the power of self-interest to guide the invisible hand toward voluntary conservation.

History has proven that this approach works. When socialist mandates in American fisheries led to overfishing, policymakers switched to property-based catch shares and individual transferable quotas, which restored fish populations. 

When hunters arrived in the New World, they rejected the Old English system and adopted the North American Model of Wildlife Conservation, which includes transferable hunting permits, helping to maintain healthy wildlife populations while providing a fair system of access.

Even “adopt a highway” programs harness self-interest to address trash and litter on public highways, granting exclusive naming and advertising rights to private parties in exchange for maintenance. 

Overall, individual ownership protects scarce resources better than bureaucratic control because direct ownership creases individual responsibility. Where individuals are given ownership and responsibility, conservation increases because what belongs to someone is protected by someone.

Arizona needs correlative rights

To solve Arizona’s groundwater tragedy, we must remove it from communal ownership and apply a property-based approach. One solution designed specifically for finite underground resources like groundwater is “correlative rights.” 

Derived from oil and gas law in resource-rich states like Texas, Oklahoma, and Nebraska, correlative rights allocate proportional shares of the resource to adjoining landowners on the surface, based on the amount of land they own. If a person owns five percent of the surface, then they own five percent of the oil and gas below, plain and simple. This is consistent with the ad coelum doctrine described in Part 1. 

In many of these resource-rich states, policymakers have already adopted correlative rights for groundwater. In Texas, for example, the Edwards Aquifer Authority uses correlative rights to allocate groundwater. In Nebraska, natural resource districts administer correlative rights.

Because allocations are treated as real property, users are free to trade their shares among themselves within the same basin—allowing market forces, rather than government bureaucracy, to dictate the most efficient use of limited resources.

This is why correlative rights have been such an effective way to prevent the tragedy of the commons in finite underground resources to date. As a proven, property-based framework rooted in America’s traditional values, correlative rights are the right approach for Arizona. 

It’s time to restore private property rights to groundwater

When the Arizona Supreme Court enshrined “communal ownership” into law, it likened groundwater to a wild animal, saying it was “free to roam as [it] please[d]” and the “property of no one” until “captured.” 

In so doing, it wrongfully embraced the Old English model that Americans rejected and failed to follow the American path that utilizes private property rights to advance the public good. This must be undone. 

To address the tragedy of the commons in Arizona, we must recognize the harms of communal ownership and reject the socialist schemes that seek to maintain it. Only by restoring private property rights to groundwater through the adoption of correlative rights can Arizona finally address the tragedy and allow landowners to protect and conserve the supplies beneath their feet. 

It’s time that Arizona leaders consider a new approach to groundwater supplies. As Arizona Justice Duke Cameron wrote in 1976: “The time has come to consider again the doctrine of correlative rights.”

• Read Part 1 Of 4 – Arizonans Had Private Property Rights To Groundwater
• Read Part 2 Of 4 – Lack Of Private Property Rights Is Sucking Rural Arizona Dry

Alexander Kolodin serves Legislative District 3 in the Arizona State House and has been practicing election law in Arizona for over a decade. He is currently running to be Arizona’s next Secretary of State.