Wednesday, January 20, 2010

Who Owns The Groundwater?

Who owns the water in the underground source, known as an aquifer, that supplies your well and drinking water system? It varies from state to state but states generally follow one of five “rules” in deciding “Who Owns the Water?”

1) The Absolute Dominion Rule: Permits a landowner to intercept ground water that would otherwise have been available to a neighboring water user and even to monopolize the yield of an aquifer without incurring liability. Eight states adopted or indicated a preference for the Absolute Dominion rule: Connecticut, Indiana, Louisiana, Maine, Massachusetts, Mississippi, Rhode Island and Texas.

2) The Reasonable Use Rule: Limits a landowner’s use of water to those uses that have a reasonable relationship to the use of the overlying land. The rule is essentially the rule of absolute ownership with exceptions for wasteful and off-site use. Twenty-one states adopted or indicated a preference for the Reasonable Use rule: Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Illinois, Kentucky, Maryland, Missouri, Nebraska, New Hampshire, New York, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia and Wyoming. Four of these states adopted the Reasonable Use rule in conjunction with the
with the Prior Appropriation rule: Arkansas, Delaware, Missouri and Wyoming. Another state, Nebraska, adopted a Reasonable Use rule in conjunction with the Correlative Rights rule.

3) The Correlative Use Rule: Maintains that the authority to allocate water is held by the courts. Owners of overlying land and nonowners or transporters have co-equal or correlative rights in the reasonable, beneficial use of ground water. A major feature of this doctrine is the concept that adjoining lands can be served by a single aquifer. Therefore, the judicial power to allocate water permits protects both the public’s interest and the interests of private users. Six states adopted or indicated a preference for the Correlative Rights rule: California, Hawaii, Iowa, Minnesota, New Jersey and Vermont.

4) The Restatement of Torts Rule: Holds that a landowner who uses ground water for a beneficial purpose is not subject to liability for interference if certain conditions are met. The water withdrawal cannot cause unreasonable harm to a neighbor by lowering the water table or reducing artesian pressure, cannot exceed a reasonable share of the total store of ground water and cannot create a direct and substantial effect on a watercourse or lake. Three states adopted or indicate a preference for the Restatement of Torts doctrine: Michigan, Ohio and Wisconsin.

5) The Prior Appropriation Rule: Maintains that the first landowner to beneficially use or divert water from a water source is granted priority of right. The amount of ground water this priority, or senior, appropriator may withdraw can be limited based on reasonableness and beneficial purposes. Some states have replaced or supplemented the Prior Appropriation doctrine with a permit system. Twelve states adopted or indicate a preference for the Prior Appropriation rule: Alaska, Colorado, Idaho, Kansas, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah and Washington.


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