United States groundwater law
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United States groundwater law is that area of
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
law related to
groundwater Groundwater is the water present beneath Earth's surface in rock and soil pore spaces and in the fractures of rock formations. About 30 percent of all readily available freshwater in the world is groundwater. A unit of rock or an unconsolidated ...
. Groundwater can either be privately owned or publicly owned. Groundwater owned by the State is usually distributed through an appropriation system. Privately owned groundwater may allow unlimited production or limited production rights based on land ownership or liability rules. It is possible to regulate the spacing of wells and groundwater production under any of these systems, but the methods, effectiveness and results of that regulation varies greatly from one system to the next depending on the type of
aquifer An aquifer is an underground layer of water-bearing, permeable rock, rock fractures, or unconsolidated materials ( gravel, sand, or silt). Groundwater from aquifers can be extracted using a water well. Aquifers vary greatly in their characteris ...
to be regulated. Effective regulation is tailored to both the
hydrology Hydrology () is the scientific study of the movement, distribution, and management of water on Earth and other planets, including the water cycle, water resources, and environmental watershed sustainability. A practitioner of hydrology is call ...
and
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of the region to be regulated. Below is a short discussion of each system and the advantages and disadvantages of each.


Rule of capture

The
Rule of Capture The rule of capture or law of capture, part of English common law and has been adopted by a number of U.S. states, establishes a rule of non-liability for captured natural resources including groundwater, oil, gas, and game animals. The genera ...
is a non-liability tort law that provides each landowner the ability to capture as much groundwater as they can put to a beneficial use, but they are not guaranteed any set amount of water. As a result, well-owners are not liable to other landowners for damaging their wells or taking water from beneath their land. The Rule of Capture allows the capture of groundwater only to the extent the use is beneficial and not malicious. The advantage of this system is that it encourages economic development and maximum utilization of the available resources. Another advantage of this system is that it leads to minimal government involvement in the operations of water wells. The primary disadvantage of this system is the potential for
overproduction In economics, overproduction, oversupply, excess of supply or glut refers to excess of supply over demand of products being offered to the market. This leads to lower prices and/or unsold goods along with the possibility of unemployment. The d ...
of the aquifer system that may result when each landowner attempts to protect the water right by drilling bigger, deeper wells. Because no landowner is given a quantifiable or set amount of production capacity, all landowners are encouraged to capture as much water as they can as quickly as they can.


Riparian rights

Correlative groundwater rights represent a limited private ownership right similar to
riparian rights Riparian water rights (or simply riparian rights) is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law heri ...
in a surface stream. The amount of groundwater right is based on the size of the surface area where each landowner gets a corresponding amount of the available water. Once adjudicated, the maximum amount of the water right is set, but the right can be decreased if the total amount of available water decreases as is likely during a drought. Landowners may sue others for encroaching upon their groundwater rights, and water pumped for use on the overlying land takes preference over water pumped for use off the land. This system benefits those who have low demand for water but own large expanses of property - such as ranchers - and harms those who have a high demand for water without correspondingly large tracts of land - such as cities and some irrigators. Only
California California is a state in the Western United States, located along the Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the most populous U.S. state and the 3rd largest by area. It is also the m ...
follows the correlative right system for groundwater, although many states follow a similar system for
oil and gas A fossil fuel is a hydrocarbon-containing material formed naturally in the Earth's crust from the remains of dead plants and animals that is extracted and combustion, burned as a fuel. The main fossil fuels are coal, petroleum, oil, and natura ...
production. Water is a rechargeable resource and so the amount of the water right may be reduced, marketing the groundwater right can be difficult. The preference for water uses on the land makes it difficult to market the water or water rights.


Reasonable use rule

The third system involving private ownership rights is the liability rule known as the American Rule or
Reasonable Use Rule __NOTOC__ Reasonable may refer to: * Reason, the capacity for rational thinking * Reasonable accommodation, an adjustment made in a system to accommodate an individual's need * Reasonable and non-discriminatory licensing, a licensing requirement ...
. This 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. Usually this rule gives great weight to historical uses and prevents new uses that interfere with the prior use. The determination of who gets a well and how much water may be pumped is usually made by a court unless the state creates a regulatory agency to perform that function, and the primary issue is the "reasonableness" of the use. The advantage to this system is its flexibility in adjudicating competing uses of an aquifer system. Unfortunately, this same flexibility can lead to excessive litigation because well owners may sue at any time to determine if a competing use is "reasonable", a standard that may change with time. The reasonableness standard is also highly dependent on the location of the suit and who ends up in the jury pool. Marketing
water rights Water right in water law refers to the right of a user to use water from a water source, e.g., a river, stream, pond or source of groundwater. In areas with plentiful water and few users, such systems are generally not complicated or contentiou ...
does not take place until the system is fully adjudicated; new users generally do not purchase groundwater rights until they are sure they cannot obtain "free" water through litigation. Many states, especially in the western United States, claim ownership of groundwater and allocate the resource through an appropriative system just as they would any surface right. Typically water rights are appropriated based on each aquifer's sustainable yield, and once all the rights are granted no further permits will be issued. Some states allow the permits to be marketed and some do not. Where the water is not owned by the state and the tort law proves to be an inadequate means to prevent overproduction, states have created administrative regulatory agencies to allocate groundwater rights between competing landowners. In those cases the administrative law essentially supplants the
tort law A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishabl ...
, making the tort remedy (or lack thereof) irrelevant.


See also

*
Water politics Water politics, sometimes called hydropolitics, is politics affected by the availability of water and water resources, a necessity for all life forms and human development. Arun P. Elhance's definition of hydropolitics is "the systematic study o ...
*
Drainage law Drainage law is a specific area of water law related to drainage of surface water on real property. It is particularly important in areas where freshwater is scarce, flooding is common, or water is in high demand for agricultural or commercial pu ...


References

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Water law Water resources law (in some jurisdictions, shortened to "water law") is the field of law dealing with the ownership, control, and use of water as a resource. It is most closely related to property law, and is distinct from laws governing wate ...
Aquifers Environmental issues with water