WorldWide Drilling Resource

Who Owns the Water? Adapted from Information by the Water Systems Council Groundwater is unquestionably an important resource. During times of drought and water restrictions, many peo- ple want to know, “Who owns the water? Who gets access to water during droughts and shortages? Can the local government limit a developer’s access to diminishing water supplies to build new homes?” There is no cookie-cutter answer to those questions. In fact, each state has its own answers and they are not simple. The rights to groundwater are governed by state statutes and case law which has evolved over the last century. Today, states generally follow one of five rules. The Absolute Dominion Rule This rule allows a landowner to in- tercept groundwater that would 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. The Reasonable Use Rule This rule limits a landowner’s use of water to those uses with a reasonable relationship to the use of the overlying land. It’s basically the rule of absolute ownership with exceptions for waste and off-site use. There are 21 states which have adopted or indicated a preference for this 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. However, 4 of these states adopted the Reasonable Use Rule in conjunc- tion with the Prior Appropriation Rule including: Arkansas, Delaware, Missouri, and Wyoming. Nebraska, adopted the Reasonable UseRule in conjunctionwith theCorrelative Did you know? Water rights vary from state to state. 66 APRIL 2014 WorldWide Drilling Resource ® Use Rule. The Correlative Use Rule This rule claims the authority to allo- cate water is held by the courts. Owners of overlying land and nonowners or trans- porters have co-equal or correlative rights in the reasonable, beneficial use of groundwater. A major feature of this doc- trine is the concept of adjoining lands being served by a single aquifer. There- fore, 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. The Restatement of Torts Rule This rule asserts, a landowner who uses groundwater for a beneficial pur- pose is not subject to liability for interfer- ence if certain conditions are met. The water withdrawal cannot cause unrea- sonable harm to a neighbor by lowering the water table or reducing artesian pres- sure, cannot exceed a reasonable share of the total store of groundwater, and cannot create a direct and substantial effect on a watercourse or lake. There are 3 states which have adopt- ed or indicated a preference for the Restatement of Torts Rule: Michigan, Ohio, and Wisconsin. The Prior Appropriation Rule This rule states the first landowner to beneficially use or divert water from a water source to be granted priority for the water rights. 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 supple- mented the Prior Appropriation doctrine with a permit system. Twelve states adopted or indicated a preference for the Prior Appropriation Rule: Alaska, Colorado, Idaho, Kansas, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, and Washington.