Anaya Nolan
Groundwater law in the United States is a complex area of law that varies from state to state and is rooted in Roman law, English common law, and state-specific legal precedents. While water law generally concerns the balance between public and private rights to use water, groundwater's unique characteristics and local relevance have resulted in a variety of regulatory approaches. These include the Absolute Dominion Rule, Reasonable Use Rule, Prior Appropriation, and Correlative Rights. The application of these doctrines and the role of courts, state regulatory agencies, and federal involvement in groundwater management are key aspects of groundwater regulations.
| Characteristics | Values |
|---|---|
| Groundwater law | Can be traced back to Roman times and also has roots in English common law. |
| Water law concerns | The balance between public rights and private rights to use water; the relative rights of individual water users; and water quality and the regulation of discharges to water. |
| Public interest criteria | If the permit applicant would benefit economically from the water use. More recently, public interest criteria are expanding to include environmental and other public concerns. |
| Water quality | Governed mostly by federal law, primarily the Clean Water Act. |
| Groundwater rights | Groundwater can either be privately owned or publicly owned. |
| Absolute Dominion Rule | A landowner may use as much groundwater as possible. The rule does not take into account impacts on neighboring users, and as a result, one owner could monopolize the entire aquifer without incurring liability. |
| Reasonable Use Rule | Does not guarantee the landowner a set amount of water, but allows unlimited extraction as long as the result does not unreasonably damage other wells or the aquifer system. |
| Equitable apportionment | Water is apportioned in a fair manner, mostly based on economics — who is making the best use of the water, producing the most economic benefits, or has the highest economic value. |
| Correlative rights | All property owners share equally in the resource until it is exhausted. |
| Rule of Capture | A non-liability tort law that provides each landowner the ability to capture as much groundwater as they can put to beneficial use, but they are not guaranteed. |
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What You'll Learn
Groundwater ownership
In the United States, water law can be broadly divided into two areas: rights to use water and restrictions on water pollution. The rights to use water encompass the balance between public and private rights, the relative rights of individual water users, and allocation rights in agriculture. State statutes and regulatory schemes control specific aspects of water usage, such as transfers between watersheds, withdrawal from overused aquifers, impoundment, and well construction.
Historically, many states in the US, particularly in the east, adopted English common law principles when they joined the union. This includes the "rule of capture" for groundwater, which allows landowners to pump and use a reasonable amount of groundwater from a basin underlying their property. However, most states have since moved away from this rule due to disputes and interference between neighbors. States with higher groundwater demand have transitioned to the "reasonable use" rule, which aims to address conflicts and promote economic development.
Some states, like California, have unique groundwater regulations. California, for instance, does not have a centralized, statewide system to regulate groundwater use. Instead, it mandates that water not be wasted or put to non-beneficial use, and landowners are expected to reduce their usage to maintain the "safe yield" of the basin. On the other hand, North Carolina (NC) law distinguishes between "underground streams" and percolating groundwater, with landownership granting the right to make "reasonable use" of the underlying groundwater.
While groundwater management faces challenges such as droughts, increasing demand, and environmental concerns, enacting major changes to groundwater law is often slow and difficult. The complex nature of groundwater, varying geology, and local usage patterns further complicate the process of establishing clear groundwater ownership and usage rights.
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Groundwater extraction
In the United States, groundwater law can be broadly divided into two areas: rights to use water and restrictions on pollution of water. The "Rule of Capture", a non-liability tort law, provides landowners with the ability to capture and use as much groundwater as they can put to beneficial use. However, this rule does not guarantee a set amount of water and has led to disputes between landowners. As a result, some states have moved away from this rule and adopted alternative approaches, such as the Reasonable Use Rule, which requires water to be used reasonably and not transported to another tract of land.
The Public Trust Doctrine, rooted in Roman law, holds that certain natural resources like navigable waters are preserved for the public's benefit. The state acts as a trustee and is obligated to manage these resources for current and future generations. This doctrine has been embedded in the constitutions of several states. Additionally, the Clean Water Act (CWA) plays a crucial role in regulating water pollution, addressing areas such as surface water discharges, sedimentation, erosion, and stormwater runoff.
The specific details of groundwater extraction regulations can be complex and vary from state to state. Some states, like California, recognize overlying rights, where the rights of landowners with property overlying the aquifer must be considered. Other states, like Florida, have abolished common law groundwater rights and implemented a permit system. The National Agricultural Law Center provides an overview of the different types of groundwater regulations in use across the country, highlighting the diversity of approaches to groundwater extraction governance.
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Groundwater rights
Groundwater law concerns the balance between public rights and private rights to use water, the relative rights of individual water users, and water quality and the regulation of discharges to water. While water law has traditionally focused on surface water or groundwater separately, there is now more focus on the connection between the two as it factors into the state's complex water delivery system, effects sensitive aquatic ecosystems, overall water quality, and growing demand for water.
Absolute dominion, or the rule of capture, gives landowners the right to capture an unlimited amount of groundwater by tapping into the underlying aquifer. This approach has been used in Texas for over a century and has been reaffirmed by both the Texas Legislature and courts. However, with increasing demands on groundwater, some states have moved away from the rule of capture and adopted more restrictive approaches.
Reasonable use, sometimes called the American rule, is similar to absolute dominion but with some limitations. In this approach, either the state owns the groundwater, or it is "unowned" until captured. Landowners have the sole right to access the groundwater below their land, but they cannot use an unreasonable amount or interfere with someone else's use. Reasonable use is the most common approach in the United States, with 17 states adopting it.
Prior appropriation is used mostly in western states and involves more management of groundwater sources. This approach is based on the principle of ""first in time, first in right," where older or "senior" rights take precedence over newer or "junior" rights in times of water shortage. Correlative rights is a mix of the previous three approaches, where users with groundwater rights for land overlying an aquifer will share proportionately when water supplies are scarce, but always have priority over those who use water from land that does not overly the aquifer.
While groundwater law varies from state to state, economics, droughts, weather variability, population increases, and higher water demand are factors that are influencing states to re-evaluate their approaches to groundwater rights.
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Groundwater quality
Groundwater law is a complex area of law that has evolved over time to address emerging challenges in groundwater management. While traditionally, groundwater and surface water were treated as separate entities, there is now a growing recognition of their interconnectedness and the need to protect overall water quality. Groundwater law can be broadly divided into two areas: rights to use water and restrictions on pollution of water.
The rights to use water are generally governed by state law, with each state having its own regulatory system and little federal intervention. These laws determine who has access to water, how much they can use, and what they can use it for. For example, in California, landowners are entitled to pump and use a reasonable amount of groundwater from a basin underlying their land for beneficial, non-wasteful purposes. However, when there is insufficient water to meet demands, landowners may be required to reduce their use to prevent long-term water level decline, a process known as "safe yield".
The regulation of groundwater pollution is addressed primarily through federal law, notably the Clean Water Act (CWA). The CWA provides a comprehensive system for regulating pollutants in US waters, including groundwater, to maintain their chemical, physical, and biological integrity. This includes regulating point source discharges of pollutants into navigable waters and addressing non-point source pollution through statutory duties, codes of conduct, and best practice guidelines.
As groundwater management continues to evolve, addressing issues such as water scarcity, ecosystem protection, and cross-boundary contexts, the law must adapt to effectively manage groundwater quality and quantity.
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Groundwater disputes
One notable dispute between states involves Mississippi and Tennessee. In 2014, Mississippi sued Tennessee, alleging that Tennessee had extracted more groundwater than it was entitled to. The case eventually reached the U.S. Supreme Court, which ruled in 2021 that the law applied to interstate groundwater should be consistent with that of interstate surface water, a principle known as equitable apportionment. This ruling set a precedent for resolving disputes over groundwater between states.
Disputes over groundwater usage can also occur between landowners, particularly in states like California, which does not have a centralized, statewide system to regulate groundwater use. In California, landowners are entitled to pump and use a reasonable amount of groundwater from a basin underlying their land for beneficial and non-wasteful purposes. However, when there is insufficient water to meet the demands, landowners are expected to reduce their usage to prevent long-term water level decline, a concept known as "safe yield."
To address these disputes, some states have adopted the Reasonable Use Rule, which allows unlimited extraction as long as it does not unreasonably damage other wells or the aquifer system. This rule considers historical uses and prevents new uses that interfere with prior ones. Other states, such as Alabama, Arizona, Delaware, Illinois, and Kentucky, follow the Absolute Dominion Rule, which allows landowners to use as much groundwater as possible without considering the impact on neighbouring users.
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Frequently asked questions
Common law is what some people refer to as "judge-made law". It occurs when courts develop their own legal system in the absence of legislated rules.
Groundwater can be privately or publicly owned. In the case of the latter, groundwater is usually distributed through an appropriation system. In the former, unlimited production or limited production rights may be allowed based on land ownership or liability rules.
The Absolute Dominion Rule, also known as the "Absolute Ownership Rule" or the "English Rule", allows a landowner to use as much groundwater as possible without taking into account impacts on neighbouring users. The Reasonable Use Rule, on the other hand, allows unlimited extraction as long as it does not unreasonably damage other wells or the aquifer system.
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