Who Owns the Water?

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A SUMMARY OF EXISTING WATER RIGHTS LAWS WHO OWNS THE WATER?

UPDATED AUGUST 2016 Acknowledgements

Research for the original report was completed by Michael Galano, Esq., Holland & Knight, and Amy Edwards, Esq., Partner, Holland & Knight. Research for the 2005 update of this report was completed by Jesse J. Richardson, Jr., Esq., Policy and Research Advisor, Water Systems Council, and Associate Professor, Virginia Tech, and Elisabeth Chaves, Esq., Policy and Research Advisor, Water Systems Council, and Associate Professor, Virginia Tech. Research for the 2009 update was completed by Jesse J. Richardson, Jr., Esq., Policy and Research Advisor, Water Systems Council, and Associate Professor, Virginia Tech. Research for this 2016 update was completed by Jesse Richardson, Jr., Esq., Lead Land Use Attorney at the Land Use and Sustainable Development Law Clinic and Associate Professor of Law at the West Virginia University College of Law.

Any questions or comments on this report should be directed to Margaret Martens, Executive Director, Water Systems Council, at 202-625-4387.

Disclaimer: This publication is not intended to constitute, nor does it constitute, legal advice. Your particular facts and situation and the particular nuances of each state’s laws determine application of the law in your case. Water Systems Council intends that this document be used for reference and educational purposes only. If you have a particular issue involving groundwater rights, you should consult with an attorney licensed to practice law in your state and knowledgeable about this area of law.

Table of Contents

Executive Summary 1

Policy Recommendations 2

Summary of Existing Water Rights Laws 3

Does the State Own the Water? 7

Water Rights and Takings 11

The States 16 A Water Systems Council Report

Executive Summary Population growth, drought, increasing demand and other factors may lead to a State statutes and case law pertaining to reexamination of groundwater ownership groundwater rights have continuously evolved rights in the coming years. The current over the last century. Water rights begin in written trend has been away from the Absolute court opinions, or common law. At the present Ownership doctrine, towards a Reasonable time, states generally follow one of five common Use or Correlative Rights approach, and law “rules” for groundwater rights: the Absolute towards state statutes regulating Dominion rule (a.k.a. Absolute Ownership rule or groundwater withdrawal. English rule) (11 states), the Reasonable Use rule However, Individual rights should be (a.k.a American rule or Rule of Reasonableness) (17 considered when determining states), the Correlative Rights doctrine (five states), “reasonableness.” Recent widespread the Restatement (Second) of Torts rule (a.k.a. droughts have increased the tension Beneficial Purpose doctrine) (two states) and the between private property rights in Prior Appropriation doctrine (a.k.a. First in Time, groundwater and the public’s right in First in Right seniority system) (13 states). Note water. Although the property right may be that a separate set of rules applies to surface water regulated, like the right to use land is rights. This report does not address surface water regulated, too much regulation results in a rights. taking of private property for public purposes without just compensation. However, states increasingly supplement or Another trend in the years since the prior alter common law rules with state edition of this booklet is the increasing permitting statutes. Some refer to this form recognition of a “regulatory taking” of of regulation as “regulated riparianism.” groundwater rights- situations where At the federal level, the U.S. Supreme Court government regulation of groundwater has recognized some form of private unlawfully infringes on groundwater property rights in water, but these rights are rights. Policy makers should be not absolute. While the United States admonished to remember the limits of their Congress often regulates pollution and authority to regulate the right to use water. drinking water quality, it has not States do not “own” the water. specifically addressed groundwater protection. However, in the wake of the recent drought and water shortages, Congress has introduced bills that would impact groundwater rights. State groundwater law is constantly evolving to respond to scientific, geo- political and environmental developments. As a result, the future of groundwater law is increasingly difficult to predict. Complicating matters further is that, in some states, recent statutory changes to the law are in some cases inconsistent with older groundwater case law decisions. In addition, aquifers do not respect state boundaries, so conflicting laws in bordering states present additional complications.

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Policy Recommendations

1. Groundwater law—whether federal or 4. State pronouncements of water rights state—should take into account the greater should incorporate respect for the private impact on groundwater resources of property rights inherent in the right to use demands of large volume users compared the water. to usage by household or smaller capacity 5. Restrictions on individual well owners wells. Any restrictions on groundwater should be implemented only as a last resort usage should recognize these differences. and supported by proof of “imminent” 2. States that continue to adhere to the depletion or contamination of the English rule should be encouraged to adopt groundwater source. a Reasonable Use or Correlative Rights 6. States that share common underground approach to groundwater management. water sources should develop a These approaches balance the individual regionalized approach to water ownership rights of landowners with those of other issues to ensure equity. users of the same aquifer. At the same time, these doctrines promote the most efﬁcient use of a vital natural resource. 3. States, through their legislatures or their courts, should make a deﬁnitive, modern pronouncement regarding which doctrine(s) is currently being followed in their state. Such a pronouncement would provide clarity and predictability in those states whose sole pronouncement on the issue of groundwater rights is common law judicial decisions from the late 19th or early 20th centuries.

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A Summary of Existing Water resolution. You should consult an attorney to ascertain your rights and responsibilities. Rights Laws Water rights are determined primarily at Introduction the state level. Originally, these rights were In 2003, Water Systems Council published set out in common law, or court cases. the first edition of Who Owns the Water? Common law continues to provide the basis Updated reports were published in October for water rights in the United States. 2005 and again in October 2009. Since 2009 The origins of groundwater law in the there have been a number of significant United States can be traced to 19th century developments with respect to groundwater English and American courts when most rights across the country. This update decisions were based on the law of includes these new developments. property. To a much greater extent than A section on Water Rights and Takings, other bodies of law such as torts, contracts, added in 2009, addresses the court cases criminal law, etc., the development of addressing the issue of when government groundwater law has been profoundly regulation “goes too far” and infringes on affected by scientific advances and our own private property rights. A number of understanding of hydrology. significant cases have been decided since State legislatures may pass laws to modify 2009 and have been added to the discussion or restrict common law water rights, so long in this section. as the state laws adhere to state and federal This increase in the conflict between private constitutional limitations. Most of the property rights in groundwater and public restrictions on groundwater use enacted by rights in groundwater represents the legislatures since 1931 were physical in clearest trend in the almost 7 years since the nature and have been borrowed from the publication of the last edition. Water rights law of oil and gas. As a result, many of the continue to be the subject of increasing regulations concerning groundwater disagreements and litigation. As population involve well spacing and the amount of and drought conspire to place increasing water that can be withdrawn. However, demands on a scarce resource, disputes groundwater rights remain mostly the about water rights are likely to escalate domain of state courts. An exception even more in the future. involves the recent passage of groundbreaking groundwater legislation in Another significant development involves California. the Texas Supreme Court’s increasing application of concepts borrowed from oil This report summarizes the common law and gas law to groundwater. The Texas and statutory rules for groundwater rights Supreme Court has also authored some in each of the fifty states. In some states, the significant takings cases involving common law rule remains unclear. In those groundwater in the past several years. cases, the author uses his judgment to ascertain the most likely result. This update provides a summary of groundwater rights in the United States. These publications are intended for educational purposes only and do not constitute legal advice. If you have a water rights issue, the particular facts of your situation will be important to any

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Groundwater Law Classifications Most states have rejected the rule, often on grounds that it immunized a landowner As the law of groundwater has evolved, who removed the percolating water for state courts have generally followed one of purely malicious reasons (see e.g., Huber v. five common law “rules” in this area: the Merkel, 117 Wis. 355, 94 N.W. 354 (Wis. Absolute Dominion rule, the Reasonable 1903). States that retain the rule generally Use rule, the Correlative Rights doctrine, have an exception that prohibits malicious the Restatement (Second) of Torts rule and pumping of groundwater. This rule gives an Prior Appropriation. Use caution, however, incentive to maximize groundwater in analyzing how these doctrines impact removal and so has also been called the groundwater rights in a particular state. “law of the biggest pump.” First, in many states it is difficult to determine what doctrine the highest state Eleven states have either formally adopted court has adopted. Courts generally do not or have indicated a preference for the deal with many water cases and lack Absolute Dominion rule. These include: expertise in that area. Thus, many court Connecticut, Georgia, Indiana, Louisiana, opinions are unclear. Secondly, many states Maine, Minnesota, Massachusetts, have passed state statutes modifying or Mississippi, Rhode Island, Texas and supplementing the common law. Vermont. Note that Vermont purports to abolish the Absolute Dominion rule by Note that Florida has abolished common statute and replace it with the Correlative law water rights. South Carolina, on the Rights doctrine. other hand, has no meaningful common law with respect to groundwater rights. Reasonable Use Rule Finally, Nebraska uses a mix of two The Reasonable Use rule (also referred to as common law rules. the American rule) is a modification of the Absolute Dominion Rule Absolute Ownership doctrine. The Reasonable Use rule is followed in many The Absolute Dominion rule (also referred eastern states. This doctrine limits a to as the Absolute Ownership rule or the landowner’s use to beneficial uses having a English rule) was initially applied in 28 reasonable relationship to the use of his states. However, in the early 1900s, many overlying land (Ground Water: Louisiana’s courts began to replace this rule with other Quasi-Fictional and Truly Fugacious Mineral, doctrines (Note: Ground Water: Louisiana’s 44 La. L. Rev. 1123, 1133 (1984)). Off-site Quasi-Fictional and Truly Fugacious Mineral, uses, referred to as “lift” are deemed 44 La. L. Rev. 1123, 1132 (1984)). unreasonable. The rule has been described “Under this doctrine, a landowner may as “essentially the rule of absolute intercept the groundwater which would ownership with exceptions for wasteful and otherwise have been available to a off-site use” (Id., at 32). So long as the use of neighboring water user and may even the water is reasonable, the landowner can monopolize the yield of an aquifer without withdraw all of the water, to the detriment incurring liability” (Teresa N. Lukas, When of others, without liability. the Well Runs Dry: A Proposal for Change in Seventeen state courts have either formally the Common Law of Ground Water Rights in adopted or have indicated a preference for Massachusetts, 10 B.C. Envtl. Aff. L. Rev. 445, the Reasonable Use rule. These include: 469 (1982)). The English rule was Alabama, Arizona, Arkansas, Delaware, established by the Court of Exchequer in Illinois, Kentucky, Maryland, Michigan, Acton v. Blundell, in 1843 (Acton v. Blundell, Missouri, New Hampshire, New Jersey, 12 W & M 324,152 Eng. Rep. 1223 (1843)). New York, North Carolina, Oklahoma, 4 A Water Systems Council Report

Pennsylvania, Virginia and West Virginia. absolute right of access to groundwater or an unlimited right to pump (Note: Ground Wyoming has adopted the Reasonable Use Water: Louisiana’s QuasiFictional and Truly rule in conjunction with the Prior Fugacious Mineral, 44 La. L. Rev. 1123, 1135 Appropriation doctrine. Florida has (1984)). Rather, this doctrine maintains that abolished common law groundwater rights, the authority to allocate water is held by the but uses a Reasonable Use rule in allocating courts (Id.). As a result, owners of overlying permits. Nebraska has adopted a land and non-owners or transporters have Reasonable Use rule in conjunction with the co-equal or Correlative Rights in the Correlative Rights doctrine. reasonable, beneficial use of groundwater, Correlative Rights Doctrine generally proportional to their ownership of land overlying the aquifer (Id.). A major The Correlative Rights doctrine is based on feature of the Correlative Rights doctrine, the Reasonable Use rule. Courts often however, is the concept that adjoining lands confuse and combine the two rules. can be served by a single aquifer (Id.). Arkansas, New Jersey and Tennessee law Therefore, the judicial power to allocate proves difficult to determine due to this water protects both the public’s interest and confusion. Correlative Rights differs from the interests of private users (Id.). the Reasonable Use rule in that it does not prohibit off-site uses and uses a Courts in five states have either formally proportionality rule. Therefore, under the adopted or have indicated preference for Correlative Rights doctrine, a landowner the Correlative Rights rule. These include: must limit use of groundwater so as to not California, Hawaii, Iowa, Oklahoma and interfere with the use of the water by others Tennessee. Vermont appears to have overlying the aquifer. adopted the rule by statute. Nebraska uses a combination of the Reasonable Use rule The leading Correlative Rights case and the Correlative Rights doctrine. involved a dispute between agricultural users and a city water supplier in the The Restatement of Torts Rule California case of Katz v. Walkinshaw, 74 P. The Restatement of Torts rule (also referred 766 (Cal. 1903). The Katz decision provided to as the Beneficial Purpose doctrine) has the two prongs of the Correlative Rights been characterized as a combination of the doctrine. First, a water transporter “can English and American rules (Juliane protect its right against wasteful or Matthews, A Modern Approach to malicious pumping by local users and Groundwater Allocation Disputes: Cline v. against interference by other American Aggregates Corporation, 7 J. Energy transporters” (Teresa N. Lukas, When the L. & Pol’y 361 (1986)). This rule was Well Runs Dry: A Proposal for Change in the adopted by the American Law Institute Common Law of Ground Water Rights in (ALI) in the Restatement (Second) of Torts § Massachusetts, 10 B.C. Envtl. Aff. L. Rev. 445, 858. The rule merges the English concept of 469 (1982)). Second, disputes between local nonliability with the American standard of users during times of insufficient supply Reasonable Use. “The result merges prior would be settled by a court by allowing groundwater law into a standard intended each “a fair and just proportion” of the to more equitably meet growing demands available water (Katz v. Walkinshaw, 74 P. on water resources” (Id.). 766 (Cal. 1903)). As opposed to the Reasonable Use and Absolute Dominion rules, the Correlative Rights doctrine does not envision an

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The Restatement (Second) of Torts § 858 supplemented the Prior Appropriation provides: Liability for Use of doctrine with a permit system (Id.). Groundwater Thirteen states have either formally (1) A proprietor of land or his grantee adopted or have indicated a preference for who withdraws groundwater from the the Prior Appropriation rule. These include: land and uses it for a beneficial Alaska, Colorado, Idaho, Kansas, Montana, purpose is not subject to liability for Nevada, New Mexico, North Dakota, interference with the use of water by Oregon, South Dakota, Utah, Washington another, unless and Wyoming. (a) the withdrawal of groundwater unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure, (b) the withdrawal of groundwater exceeds the proprietor’s reasonable share of the annual supply or total store of groundwater, or (c) the withdrawal of the groundwater has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use of its water. (2) The determination of liability under clauses (a), (b) and (c) of Subsection (1) is governed by the principles stated in §§ 850 to 857. Two states, Ohio and Wisconsin, have either formally adopted or have indicated a preference for the Restatement of Torts doctrine. Prior Appropriation Doctrine The Prior Appropriation doctrine is utilized in several western states (Juliane Matthews, A Modern Approach to Groundwater Allocation Disputes: Cline v. American Aggregates Corporation, 7 J. Energy L. & Pol’y 361 (1986)). Pursuant to this rule, the first landowner to beneficially use or to divert water from a water source is granted priority of right. The quantity of groundwater a senior appropriator may withdraw may be limited based on reasonableness and beneficial purposes (Id.). Many states have replaced or 6 A Water Systems Council Report

Does the State Own the Water? public. Property held under this doctrine is legally “owned” by the state, but must be Introduction managed for the benefit of the public. The short answer to this question is “NO!” The United States Supreme Court set out Several states claim, through the scope of the Public Trust doctrine in pronouncements in state laws or state Illinois Central Railroad v. Illinois, 146 U.S. constitutions, that the state “owns” the 387 (1892). The issue was whether the state water. This claim does not reflect the law on of Illinois could sell the waterfront area of this point. Does this mean that landowners Chicago to the Illinois Central Railroad. The or holders of water rights “own” the water? Court found that the state had title to the Not exactly. land underneath the navigable waters of Lake Michigan and held the title in trust for As the following section details, the law of the public’s use. Thus, the state could not each state defines who has the right to use convey this land to a private entity, groundwater. In Prior Appropriation states, destroying the public’s right to navigate the holder of the water right owns this and fish. Trust property can be conveyed to right. In other states, the right generally private individuals if the effect is to goes with ownership of land, but can be improve the public’s ability to exercise these severed and conveyed separately. rights. The conveyance by Illinois did not, Just as with ownership of land, the state and so was unlawful and reversed by the government (and sometimes the local Court. government) can impose reasonable The Public Trust doctrine centers on land regulations on the use of water. However, if beneath tidal and navigable waters. The these regulations go “too far,” the focus is on navigation, commerce, fishing regulations enact a taking of private and recreation. Only one state supreme property for public use without just court, California’s, has held that the trust to compensation, and the owner must be non-navigable waters. In National Audubon compensated. Other legal rights also protect Society v. Superior Court, 33 Cal.3d 419, cert. holders of water rights. denied, 464 U.S. 977 (1983), the California How far is “too far” is a very complex Supreme Court held that the Los Angeles question and is beyond the scope of this Department of Water and Power must report. If the federal, state or local consider the Public Trust doctrine when government has put regulations upon your withdrawing water from non-navigable use of water that you feel are unfair, you tributaries of Mono Lake to provide public should consult an attorney in your state. See water supply. These withdrawals were Water Rights and Takings for more lowering the water level in Mono Lake. In information. essence, the court found that Prior Appropriation rights and the public trust States base their claim of ownership of must be balanced. water on two legal grounds: (1) the Public Trust Doctrine; and (2) the Waters of the Some states mistakenly rely on the Public State concept. This section briefly explains Trust doctrine to assert that they “own” the why neither doctrine applies. water. However, the doctrine does not grant ownership of the actual water. Only one The Public Trust Doctrine court has applied the Public Trust doctrine The Public Trust doctrine is a common law to groundwater. In the Matter of Water Use doctrine that says that the state holds Applications, 94 Haw. 97, 9 P.3d 409 (2000), certain natural resources in trust for the the Hawaii Supreme Court held that a

7 A Water Systems Council Report doctrine similar to the Public Trust doctrine tries to interpret which “waters” are applies to groundwater. See the description “waters of the United States.” This legal of Hawaii water rights for a more detailed mess results from the fact that the federal discussion of this case. government holds very limited regulatory authority. applies to groundwater. See the description of Hawaii water rights for a more detailed In April of 2014, the United States Army discussion of this case. Corps of Engineers and the United States Environmental Protection Agency Effective in 2008, Vermont became the 8th introduced a revised rule that, depending state to assert public trust ownership in upon the reader, “clarified” or “expanded” groundwater pursuant to state statute (10 the definition of “waters of the United V.S.A. § 1390). The other seven states are States”. Despite much controversy and a Connecticut (Conn. Gen. Stat. § 22a-15 plethora of public comments that (1995)); Delaware (Del. Code Ann. tit. 7, § alternatively praised or condemned the new 6001 (2001)); Massachusetts (Mass. Gen. rule, the USACE finalized the rule in May Laws ch. 21L, § 1 (2004)); Nevada (NRS 2015. 533.025); New Hampshire (N.H. Rev. Stat. Ann. § 485-C:1 (2004)); New Jersey (N.J.S.A. Several lawsuits were initiated immediately 58:11A-2(b) (1977)); and, South Dakota after approval of the final rule. Plaintiffs (S.D.C.L. §§ 46-1-2). See Oday Salim and included states, environmental groups, Noah Hall, “50 State Survey of landowners and others. Therefore, a variety Groundwater and the Public Trust of groups that generally are not aligned find Doctrine,” Great Lakes Environmental Law themselves all opposing the present rule, Center, unpublished paper (2008) (on file but for different reasons. with author). Waters of the State On February 22, 2016, the United States Court of Appeals for the Sixth Circuit Some states misinterpret the definition of resolved the dispute over which court holds “waters of the state” as meaning that the jurisdiction over this matter (at least for state owns the water. This extension of the now). The court ruled that the United States law is also incorrect. Court of Appeals holds jurisdiction rather The Waters of the State terminology comes than the United States District Court, from “waters of the United States” in the supporting the position of the United States federal Clean Water Act. Section 404(a) of Department of the Interior and the United the Clean Water Act (33 U.S.C. section 1344) States Environmental Protection Agency. A prohibits discharge of dredge or fill material final decision on the meaning of “waters of into the “navigable waters.” 33 U.S.C. the United States” is unlikely in the next section 1362(7) defines “navigable waters” few years. as “waters of the United States.” The In contrast to the narrow authority held by regulations under this provision further the federal government, states hold broad define “waters of the United States,” which authority to regulate environmental issues include navigable waters, interstate waters such as water pollution. To fill in the gaps of and certain wetlands. federal authority, many states have passed This complex maze of definitions seeks to state clean water acts. These acts generally delineate the scope of the federal parallel the federal act but include a much government’s authority to regulate broader list of waters under Waters of the discharge of dredge and fill material. An State. Waters of the State intends to even more complex set of court decisions delineate those “waters” that the state may 8 A Water Systems Council Report regulate. These waters generally include diversion regulation is 100,000 gallons per groundwater, unlike at the federal level. day or greater, averaged over a 90-day period. Any new or increased consumptive The federal government does not claim to use of five million gallons per day or own “waters of the United States,” greater averaged over a 90-day period will including the millions of acres of wetlands require Council approval. Communities falling under that definition. However, that straddle the Basin boundary will be some states, confused by the regulatory permitted to use Basin water provided the language, use the definition of Waters of the water is returned to the Basin, “minus an State to claim ownership of water, including allowance for consumptive use.” Intra- groundwater. However, these Basin transfers of more than 100,000 gallons interpretations are incorrect. per day averaged over a 90-day period will Great Lakes-St. Lawrence River Basin require unanimous Council approval. Bulk Water Resources Compact water removal in any container larger than 5.7 gallons will be treated as a diversion. The Agreement Each member state may, at their discretion, The Great Lakes-St. Lawrence River Basin regulate containers smaller than 5.7 gallons Water Resources Compact (hereinafter “The in size. Exceptions to Article 4 withdrawal Great Lakes Compact” or “the Compact”) is and diversion limitations will be made for an agreement among eight Great Lakes humanitarian, firefighting and emergency states (Illinois, Indiana, Michigan, response purposes. The Compact bans most Minnesota, New York, Ohio, Pennsylvania diversions outside of the Basin. and Wisconsin) and the provinces of The Great Lakes Compact and the Public Ontario and Québec, with respect to Trust Doctrine environmental and economic issues affecting the region. During 2007 and 2008, A great deal of concern has been expressed each of the eight Great Lakes State over the impact of certain provisions of the legislatures ratified the Compact. Great Lakes Compact on surface water and Legislative approval was completed by the groundwater rights. The concern over U.S. Senate on August 1, 2008, and by the groundwater is greater, due to the apparent U.S. House of Representatives on attempt to expand the public trust doctrine September 23, 2008. President Bush signed to groundwater. the joint resolution on October 3, 2008. The concern with respect to water rights The Compact provides a comprehensive focuses on Lines 187–188 of the Great Lakes management framework for achieving Compact, which state: sustainable water use and resource Waters of the Basin are precious protection. The eight Great Lakes States public natural resources shared and reached a similar, good faith agreement held in trust by the States (emphasis with Ontario and Québec in 2005, which the added). Provinces are using to amend their existing water programs for greater regional This sentence appears to attempt to exert consistency. the Public Trust doctrine over “Waters of the Basin.” “Waters of the Basin” are Under the Compact, each member state defined as “the Great Lakes and all streams, regulates new or increased withdrawals rivers, lakes, connecting channels and other and diversions in accordance with the bodies of water, including tributary Compact. All new or increased diversions groundwater, within the Basin” (Lines 178– are prohibited except as in accordance with 180). the Compact. The default threshold for 9 A Water Systems Council Report

The Public Trust doctrine, at its core, is the property or invasion of property proposition that lands that underlie rights…” navigable waters are property of the state, This confusion with respect to the effect of held in trust for the public (see Illinois the Compact on these rights prompted a Central Railroad v. Illinois, 146 U.S. 387 State Senator in Ohio to propose legislation (1892)). Only one state supreme court has that would have Ohio adopt the Compact, held that the Public Trust doctrine applies but striking the language that attempts to to groundwater—Hawaii (In re Water Use impose a public trust on the water. In the Permit Applications, 94 Hawai’i 97, 9 P.3d 409 end, a compromise was struck whereby the (2000)). The result in that case hinged on the legislature approved the Compact, but a history of the Kingdom of Hawaii, so is constitutional amendment was placed on inapplicable in the rest of the country. the ballot for the November 2008 election in Commentators have recognized the impact Ohio. (Senate Joint Resolution No. 8). The of the Compact in this regard. “With little proposed amendment (Ohio Issue 3) passed fanfare, the Charter and the Compact both overwhelming, with nearly 72% of the vote. recognized that the Public Trust doctrine The amendment formalizes the applies to groundwater as well as surface groundwater rights of Ohio residents and water” (Scanlan, Sinykin and Krohelski, states that water cannot be held in trust by a “Realizing The Promise of the Great Lakes state. Compact: A Policy Analysis for State Conclusion Implementation,” 8 Vermont Journal of Environmental Law 39, 49 (2006–2007)). “If Only time will tell what the impact of the water is a public trust held by the Great Lakes Compact will be on government for the public beneﬁt, then groundwater rights. However, the Compact private ownership of water for primarily a represents the continuation of a trend where private purpose is precluded and water will local and state governments attempt to need to be managed within the Basin in a control and restrict the use of groundwater way that upholds the public interest and resources. The overwhelming approval of protects the water commons” (Id.). Ohio Issue 3 may temper the zeal of state legislatures, but thus far that has not been Given the declaration of the public trust the case. over groundwater in the Basin, concerns about private water rights are understandable. However, the Compact seems to contradict this language in Section 8.1.1 and Section 8.1.4. Section 8.1.1. Nothing in this Compact shall be construed as affecting or intending to affect or in anyway interfere with the law of the respective Parties relating to common law Water rights. Section 8.1.4. “An approval by a Party of the Council under this Compact does not give any property rights…; neither does it authorize any injury to private

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Water Rights and Takings Resources Board, 855 P.2d 568 (Oklahoma, 1990) involved an appeal from an order of Introduction the Oklahoma Water Resources Board which granted a city’s amended application The Fifth Amendment to the United States to appropriate stream water. The Constitution states that government shall appropriation would have consumed all not take private property for public use unused water in the stream. without just compensation (Amendment V, United States Constitution). Sometimes a The Oklahoma Supreme Court held that the regulation or law so restricts the use of Oklahoma riparian owner enjoys a vested property that the courts will rule that it is a common-law right to the reasonable use of “regulatory taking” (or “taking”). Several the stream. “This right is a valuable part of recent cases address the takings issue with the property owner’s “bundle of sticks” and respect to water rights. This section may not be taken for public use without discusses cases involving surface water as compensation” (Id., at 571). The court well as groundwater, since the principles further held that, inasmuch as 60 O.S. 1981 are similar. § 60 (the permitting provision at issue), as amended in 1963, limited the riparian Takings law provides that one may prove a owner to domestic use and declared that all taking in three different ways. If the other water in the stream becomes public governmental action involves a physical water subject to appropriation without any invasion or deprives the owner of all provision for compensating the riparian economically viable uses of the property, a owner, the statute violated the takings taking has occurred. We call these two types clause of the Oklahoma Constitution, Art. 2 of takings “categorical takings” because if § 24, Okl. Const. you prove one of these two conditions, you need not conduct any further analysis. Most In Omernik v. State, 64 Wis. 2d 6, 218 N.W.2d takings claims involve the third test, a much 734 (1974), Ray Omernik was charged with more difﬁcult test to meet. Under this test, several counts of violating a state water called the Penn Central balancing test, the permitting statute by the unlawful court balances the economic impact of the diversion of other than surplus water from taking on the landowner, the landowner’s a stream for agricultural irrigation reasonable investment backed expectations purposes. Omernik had not sought a permit and the character of the governmental for the diversions. By a judgment of the activity. This balancing test comes from the County Court for Portage County, United States Supreme Court case of Penn defendant was convicted on all counts. The Central Transportation Co. v. New York City, Wisconsin Supreme Court held that statute 438 U.S. 104 (1978). applied to navigable and nonnavigable streams, the permit requirement was not Any takings case is difﬁcult for landowners limited to stream-to-stream diversions and or water rights holders to win, and takings the statute did not constitute the taking of litigation is extremely costly. However, if property without just compensation. given a choice, the plaintiffs would prefer to have addressed this issue in the past several pursue a case as a physical invasion or loss years. of all economically viable uses case. Water Permitting Cases Two cases address the takings issue in connection with water permitting. Franco- American Charolaise, Ltd. v. Oklahoma Water

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Other Cases Landowners appealed. A companion case involved a similar appeal. In addition to the situations involving state permitting programs, other governmental The United States Court of Appeals for the actions limiting the right of a water rights Sixth Circuit had not decided the issue of holder to use water may rise to a level of a groundwater rights in Ohio before. Water taking of private property for public use rights are a state law issue, and the final say without just compensation. After decades of on state law issues lies with the state little or no activity, several written opinions supreme court. Federal courts may, when have addressed this issue in the past several faced with difficult state law issues ask for years. assistance from the state supreme court by asking “certified questions”. Many state and local governments have taken an increased interest in regulating The Sixth Circuit Court of Appeals posed an water use, particularly during droughts. identical certified question in both cases to Even in emergency situations, however, a the Ohio Supreme Court: “Does an Ohio regulatory taking may occur. “Private homeowner have a property interest in so rights, under such extreme and imperious much of the groundwater located beneath circumstances, must give way for the time the landowner’s property as is necessary to to the public good, but the government the use and enjoyment of the owner’s must make full restitution for the home?” The Ohio Supreme Court agreed to sacrifice” (United States v. Russell (United answer the certified question in both cases States Supreme Court, 1871)). (102 Ohio St.3d 1420, 2004 Ohio 2003, 807 N.E.2d 365 (2004)). The Ohio Supreme In Estate of Hage v. United States, 82 Fed. Cl. Court held that landowners have a property 202 (2008), the court found that the Forest interest in the groundwater underlying Service’s construction of fences on federal their land, and governmental interference land around water and streams in which with that right can constitute an the Hages had a vested water right unconstitutional taking. The court cited constituted a physical taking. The fences “diverse jurisdictions” that “have held that were constructed in conjunction with the landowners’ rights to groundwater are introduction of elk into Table Mountain, protected from interference by the Nevada. government” (McNamara at 646. 107 Ohio McNamara v. City of Rittman, 838 N.E.2d 640, St.3d at 248–249). 107 Ohio St.3d 243, 2005 Ohio 6433 (2005), In Klamath Irrigation District v. United States, represents a very significant ruling that 67 Fed. Cl. 504, 61 ERC 1385 (2005), users of gives groundwater rights constitutional irrigation water from the Klamath Basin protection. Landowners filed an action reclamation project brought suit against the alleging that city’s drilling of wells on United States seeking just compensation nearby land, which caused water shortages under the Fifth Amendment, as well as and poor quality water, violated their due damages for breach of contract, owing to process rights and constituted a taking. The temporary reductions in 2001 by the Bureau United States District Court for the of Reclamation in the amount of project Northern District of Ohio granted city’s water available for irrigation. Parties filed motion for summary judgment. (Summary cross-motions for partial summary judgement is granted by a court where judgment. there are no factual issues in genuine dispute. Since the facts are settled, no need for a jury exists. The judge can rule on the legal issues and resolve the case.) 12 A Water Systems Council Report

The Court of Federal Claims held that, permit to pump the same water, but was pursuant to Oregon law, the United States denied. The cattle company claimed a in 1905 obtained property rights to taking, but the court found that the claim unappropriated water of the Klamath Basin was premature and that the and associated tributaries. Significantly, the Commissioner’s order was not an court found that the contracts between the unconstitutional taking without United States and water districts for supply compensation. In addition, the order did of irrigation water from the Klamath Basin not violate Water Appropriation Law or reclamation project gave rise to property provisions within Environmental Policy rights within meaning of Fifth Amendment Law. Finally, the order was supported by Takings Clause. However, the proper substantial evidence and was not arbitrary remedy for their alleged infringement lay in or capricious. breach of contract claim, not a taking claim. The court compared regulation of water use Tulare Lake Basin Water Storage District v. to zoning. “Like zoning legislation, United States, 49 Fed. Cl. 313, 52 ERC 1658, legislation which limits or regulates the 31 Envtl. L. Rep. 20, 648 (2001), came to a right to use underlying water is conclusion different than in the Klamath permissible… Where regulation operates to case. In Tulare, California water users arbitrate between competing public and brought suit claiming that their private land uses, however, as does the contractually conferred right to the use of water priority statute in this case, such water was taken from them when the legislation is upheld even where the value government imposed water use restrictions of the property declines significantly as a under the Endangered Species Act (ESA). result” (Crookson Cattle Co. v. Minnesota Both sides filed motions for summary Department of Natural Resources, 300 N.W.2d judgement as to liability. The government 769, 774 (Minn. 1980)). argued that the rule applied in the Klamath Casitas Irrigation District case, that frustration of a contract expectancy does not constitute a The United States Court of Appeals for the taking, should be applied in this case as Federal Circuit recently decided an well. The Federal Claims court disagreed, extremely important takings case involving finding that the rule does not apply where water (Casitas Municipal Water District v. the right to use water was taken when the United States, 708 F.3d 1340 (2013)). government imposed water use restrictions Although the case involves surface water, under the ESA. The restrictions effected a the principles could apply to groundwater physical, rather than regulatory, taking of as well. The case bounced between the property in the case of water users who had Federal Claims Court (the trial court) and contract rights entitling them to the use of a the Court of Appeals (the appellate court) specified quantity of water. The plaintiffs’ for several years before a final resolution motion for summary judgment was granted was reached in 2013. and the defendant’s motion denied. Pursuant to the Endangered Species Act, the Crookson Cattle Co. v. Minnesota Department United States ordered Casitas to install a of Natural Resources, 300 N.W.2d 769 (Minn. fish ladder and divert some of its surface 1980) involved a challenge by a cattle water to the ladder to protect an company and its sole owner against a endangered species of fish. Casitas filed Department of Natural Resources suit, claiming that the diversion was a Commissioner’s order which granted a city taking of its water rights without just a permit to pump water from a site 12 miles compensation. from city. The cattle company applied for a

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Casitas conceded that it could not prove a environmental groups, seriously considered deprivation of all economically viable uses, an appeal at several stages. The holding nor could it prove a regulatory taking under remains law in the Federal Circuit. the Penn Central balancing test (Penn However, uncertainty remains as to Central Transportation Co. v. New York City, whether the ruling will stand the test of 438 U.S. 104 (1978)). The trial court ruled time. Inevitably, water rights and takings that the required installation of the fish will conflict in other courts. Those rulings ladder and the required diversion of water may or may not agree with the ruling in did not amount to a physical taking (Casitas Casitas. Eventually, a case will need to make Mun. Water Dist. v. United States, 76 Fed.Cl. its way to the United States Supreme Court 100 (2007)). On appeal, the Court of Appeals to resolve the issue. for the Federal Circuit reversed, finding that Texas Cases the action amounted to a physical taking, and sent the case back to the Federal Claims A pair of recent Texas cases show that Court for reconsideration (Casitas Mun. regulatory takings of water rights may Water Dist. v. United States, 543 F.3d 1276 occur more often than previously assumed. (Fed.Cir.2008), reh’g and reh’g en banc denied, Although the cases are binding only in 556 F.3d 1329 (Fed.Cir.2009)). Texas, the rulings may influence courts in other states, and garnered national Upon reconsideration, the Federal Claims attention. Court found that the lawsuit was not yet “ripe” (meaning that Casitas had filed the First, the Supreme Court of Texas, in lawsuit too early) because Casitas had not Edwards Aquifer Authority v. Day, 369 S.W.3d had to turn away any customers (Casitas 814 (Sup. Ct. Texas 2012), found that land Mun. Water Dist. v. United States, 102 Fed.Cl. ownership includes an interest in 443 (2011). The nature of water rights in “groundwater in place” that cannot be California played a key role in the case. A taken for public use without just water right in California (as in many states) compensation under the Texas Constitution. means that the rights holding has the right The court compared groundwater to oil and to beneficial use of the water. The court gas, and found no reason not to treat reasoned that since customers had not been groundwater as similar to oil and gas. The turned away, Casitas had not yet been court then returned the case to the trial denied beneficial use of the water. court to gather sufficient facts to determine whether a regulatory taking had occurred. The case was again appealed to the United States District Court of the Federal Circuit About a year and a half after Day was (by both parties). The government, along decided, the Texas Court of Appeals was with some environmental groups filing presented with a case where the trial court friend-of-court briefs, urged the court to had found a regulatory taking, applying the find that the public trust doctrine meant Penn Central balancing test. In this case, a that no regulatory taking could occur. The pecan grower had applied for permits to Court of Appeals rejected this argument withdraw groundwater to irrigate his pecan and affirmed the decision of the Federal trees. The Edwards Aquifer Authority Claims Court, leaving all parties unsatisfied denied one permit outright and granted a (Casitas Municipal Water District v. United permit allowing withdrawal of a portion of States, 708 F.3d 1340 (2013)). the water requested by the pecan grower. The United States decided not to appeal the The pecan grower filed a lawsuit, claiming a Casitas case, although the Obama regulatory taking. administration, at the urging of

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The trial court found that a regulatory taking had occurred, and awarded damages. On appeal, the Court of Appeals of Texas afﬁrmed the ﬁnding of a regulatory taking (Edwards Aquifer Authority v. Bragg, 421 S.W.3d 118 (Tex. Ct. App. 2013). In addition, the court ruled that when a regulatory taking has been found in this situation, damages are calculated by subtracting the value of the real estate before the permit denial from the value of the property after the permit denial. On April 29, 2016, the Supreme Court of Texas decided not to hear the appeal in the Bragg case, so the decision will stand.

Conclusions

After decades of very few regulatory takings cases that address the issue in the context of water rights, a ﬂurry of cases has been decided the past ten years. Despite these decisions, much uncertainty exists as to the analysis of takings in the water rights context. The trends seem to indicate that courts are more likely to reign in governments that attempt to limit private water rights. In any case, challenges to government regulation remain extremely difﬁcult and costly.

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The States The Alabama legislature created the Permanent Joint Legislative Committee on Alabama Water Policy and Management in the spring of 2008. The committee is made up of seven In several decisions, the Alabama Supreme members each from the House and Senate. Court has held that the state follows the The committee is to report to the Alabama rule of Reasonable Use for groundwater. In Legislature at its regular sessions. The Martin v. City of Linden, a landowner group’s duties include recommending a attempted to enjoin the defendant city from water management plan that expands the drilling a well on land adjacent to the availability of water to meet Alabama’s landowner’s farm (Martin v. City of Linden, current and future needs, developing 667 So. 2d 732 (Ala. 1995)). The specific conservation programs and identifying question was whether the city could drill a areas where more research is needed. permanent well on a one-acre tract of land it owned outside its municipal limits, and Alaska pump water by pipeline at an estimated rate of 500,000 gallons per day to the city, Alaska is one of several western states that located 15 miles away. The court held that apply Prior Appropriation to ground and the landowner would suffer irreparable surface water. injury and therefore the city’s action was Alaska Stat. §§ 46.15.030, 46.15.165 unreasonable. The Reasonable Use rule was and 46.15.166 (Michie 1991 & Supp. formally adopted by Alabama in Adams v. 1992) Sec. 46.15.030. Water reserved Lang as controlling disputes over to the people. underground water (Adams v. Lang, 553 So. 2d 89 (Ala. 1989)). In addition, the Alabama Wherever occurring in a natural Supreme Court has applied nuisance law in state, the water is reserved to the a situation where withdrawals of people for common use and is groundwater caused subsidence to subject to appropriation and adjoining properties (Henderson v. Wade beneficial use and to reservation of Sand & Gravel Co., 388 So.2d 900 (Ala. instream flows and levels of water, 1980)). as provided in this chapter. No statutory provisions regulate To obtain water rights in Alaska, groundwater withdrawals in Alabama. landowners must file an application with However, certain water users must register the Alaska Department of Natural and report their use (Ala. Code §§ 9-10B-1 Resources (http://dnr.alaska.gov/mlw/ to 9-10B-30). These groups include public water/wrfact.htm). See also Alaska Stat. § water systems; persons who divert, 46.15.040. Once the application is processed, withdraw or consume more than 100,000 a permit will be issued to drill a well or gallons of water on any day from waters of divert the water. Once the full amount of the state; and persons who have the water that a landowner can use beneficially capacity to use 100,000 gallons of water on has been established, a certificate of any day for purposes of irrigation (Ala. appropriation will be issued. Code § 9-10B-20). Additionally, the Alabama Water Resources Commission has the authority to declare “capacity stress areas” (Ala. Code § 9-10B-21). If such an area is designated, then the Commission may restrict uses in those locations (Id.).

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The duration of the water right is perpetual Currently, three irrigation non-expansion as long as the water use and quantity and five active management areas exist remain the same. The Commissioner has the (http://www.azwater.gov/AzDWR/ authority to declare a “critical water WaterManagement/AMAs/). Within those management area” upon a finding that a areas, the state requires permits for water water shortage does or will exist. Water withdrawals. Exceptions to the permit uses in these areas may be restricted (11 requirement include withdrawals for AAC §§ 93.500 to .540). nonirrigation use from wells with a maximum pump capacity not exceeding 35 A search of Alaska case law fails to reveal gallons per minute (A.R.S. § 45-454(A) and any relevant precedent. One case of some (B)). Non-irrigation use is defined to note is Trillingham v. Alaska Housing include growing crops on 2 acres of land or Authority. In Trillingham, a landowner sued less (A.R.S. § 45-402(23)(a)). Certain existing for damages and to enjoin defendant from water rights within these areas may fall allegedly polluting and reducing plaintiff’s under the protection of the grandfather supply of percolating waters. The court provisions of the Act (A.R.S. § 45-462). held that the mere claim of reduction of water supply does not constitute a cause of Two recent cases in Arizona clarify water action. “Nor does the allegation of rights in that state, while a third, the most diminution of supply suffice to constitute a recent, seems to create uncertainty. First, in claim because percolating waters, being a Brady v. Abbott Laboratories, 433 F.3d 679 (9th part of the freehold, may, generally Cir. 2005), the Bradys (pecan farmers) filed speaking, be used by the owner as he sees suit against Abbott Laboratories. Abbott fit” (Trillingham v. Alaska Hous. Auth., 109 F. pumped large amounts of groundwater, Supp. 924 (D. Alaska. Terr. 1 Div. 1953)). which lowered the groundwater table on the Brady property by 16 feet. The lowering Arizona of the groundwater table killed the pecan In Arizona, the Reasonable Use doctrine trees on the property. applies to groundwater, except for several Abbott obtained a de-watering permit from exceptions created by the 1980 the state in order to dewater, conduct Groundwater Management Act (Ronald excavation and expand its facilities. Abbott Kaiser and Frank Skillern, Deep Trouble: encountered more water than anticipated Options for Managing the Hidden Threat of and pumped more water than allowed Aquifer Depletion in Texas, 32 Tex. Tech. L. under the permit. The court found that Rev. 249 (2001)). See also, Town of Chino Abbott’s withdrawal of groundwater was Valley v. State Land Dep’t, 580 P.2d 704, 709 for an improvement of the land, and (Ariz. 1978) (discussing application of therefore was a beneficial use under the Reasonable Use rule in Arizona). The 1980 Reasonable Use rule. The court noted that law provided three possible designations Abbott did not withdraw water to use on for land: nonregulated, non-irrigation land other than the land from which it was expansion and active management areas pumped, so lift was not involved. (Id.). In non-regulated areas, groundwater is considered the property of the landowner (Id.). When the Groundwater Code does not apply, Arizona follows the rule of Reasonable Use (Bristor v. Cheatham, 255 P. 2d 173 (Ariz. 1953)).

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In Strawberry Water Company v. Paulsen, 207 an option to purchase the property to the P.3d 654, 25, Ariz. App. Div. 1, (2008), an City of Prescott. The property was Arizona Appellate Court found that appraised at $23 million, of which $18–$21 groundwater rights are real property rights million was attributable to the water rights subject to constitutional protections, joining (Id.). Due to uncertainty about the water the Ohio Supreme Court and others. In this rights, Prescott failed to exercise the option. case, a water company brought action Davis then ﬁled a complaint against all against pond owners for conversion and holders of the purported commercial water utility tampering after company discovered rights (“Agua Sierra”). On cross motions for that pond owners connected a pipe to the summary judgment, the trial court held that water company’s line to supply pond. Pond reservation was invalid and granted owners ﬁled cross-claim against vendors. summary judgment for Davis. The court The court noted that groundwater rights found that there is no right of ownership of must be distinguished from rights to groundwater in Arizona prior to its capture groundwater after it has been pumped. A and withdrawal (Id., at 508). Upon appeal groundwater right is a right to use, not by Agua Sierra, the court of appeals vacated own, the groundwater. Town of Chino Valley the trial court’s judgment. The court held v. City of Prescott, 131 Ariz. 78, 82, 638 P.2d that Arizona law allows a grantor to reserve 1324, 1328 (1981). See also, Phelps Dodge rights to the water beneath the land Corp. v. Ariz. Dep’t of Water Res., 211 Ariz. conveyed (Id.). Davis appealed to the 146, 149 n. 2, ¶ 13, 118 P.3d 1110, 1113 n. 2 Supreme Court of Arizona. (App. 2005). Meanwhile, there is a separate The Supreme Court of Arizona discussed personal property right to the water itself the reasonable use doctrine and the Arizona only when it is possessed and controlled. Groundwater Management Act (GMA). The Finally, Davis v. Agua Sierra Resources, L.L.C., CF Ranch is not within an Active 220 Ariz. 108, 203 P.3d 506, 553 Ariz. Adv. Management Area (AMA) under the GMA, Rep. 32 (2009) is a confusing case that so is not subject to the extraction and use creates uncertainty as to water rights, limits applicable to AMAs (Id., at 508–509). Arizona adheres to the “reasonable use” The GMA expressly allows extraction of rule for groundwater, but uses the Prior water from areas adjacent to AMAs and Appropriation doctrine for surface water. transport to AMAs (Id., at 509). The court This case involves groundwater rights. noted that the GMA does not recognize the existence of “commercial water right[s]” in In a 1981 deed, Chino Ranch, Inc. (Chino groundwater (Id.). The court held that Ranch) conveyed a parcel of land known as “Arizona law does not recognize a real CT Ranch, reserving all mineral rights and property interest in the potential future use “commercial water rights.” (Id., 203 P.3d at of groundwater that has never been 507). The grantee, Red Deer Cattle, Inc. (Red captured and applied to reasonable Deer), then conveyed the property to Davis. use” (Id., at 510). Relying mainly on the That deed also purported to reserve to the language of the GMA, which requires the grantor all “commercial water rights and consent of the “landowner” for transport of waters incident and appurtenant to and water from outside an AMA to inside the within the real property,” but provided that AMA, the court further found that this the grantee could use water for “ranch, “potential future use” is not severable (Id., livestock and domestic and agriculturally at 511). related purposes” (Id.). Chino Ranch and Red Deer had merged prior to the grant to Davis. Nineteen years later, Davis granted

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The Supreme Court of Arizona did not cite can be found in the common law (see Lingo Strawberry in the Agua Sierra ruling. v. City of Jacksonville, 258 Ark. 63, 66 (Ark. However, since The Supreme Court of 1975); Jones v. Oz-Ark-Val Poultry Co., 228 Arizona is the highest court in the state, the Ark. 76, 306 S.W.2d 111 (1957)). However, ruling likely makes Strawberry invalid. Arkansas appears to have adopted a Reasonable Use regime. Chapter 2 – Groundwater Code In Lingo v. City of Jacksonville, a city 45-401. Declaration of policy purchased several parcels of land where it A. The legislature finds that the constructed five water wells. Water was people of Arizona are dependent in pumped several miles to the city to whole or in part upon groundwater supplement its water supply for sale to its basins for their water supply and customers. Appellants were homeowners, that in many basins and sub-basins farmers and a manufacturer within the withdrawal of groundwater is same watershed who depended upon their greatly in excess of the safe annual wells for their water supply. The yield and that this is threatening to chancellor’s order enjoined the city from destroy the economy of certain areas pumping more than 650 gallons per minute of this state and is threatening to do from any of the five individual water wells, substantial injury to the general in excess of eight hours during any twenty- economy and welfare of this state four hour period. “As to water rights of and its citizens. The legislature riparian owners, this State has adopted the further finds that it is in the best Reasonable Use rule. We see no good reason interest of the general economy and why the same rule should not apply to a welfare of this state and its citizens true subterranean stream or to subterranean that the legislature evoke its police percolating waters” (Lingo v. City of power to prescribe which uses of Jacksonville, 258 Ark. 63, 66 (Ark. 1975). See groundwater are most beneficial and also, Harris v. Brooks, 225 Ark. 436, 283 S.W. economically effective. 2d 129 (Ark. 1955); Harrell v. City of Conway, 224 Ark. 100, 271 S.W.2d 924 (Ark. 1954). B. It is therefore declared to be the (“In all our consideration of the reasonable public policy of this state that in the use theory as we have attempted to explain interest of protecting and stabilizing it, we have accepted the view that the the general economy and welfare of benefits accruing to society in general from this state and its citizens it is a maximum utilization of our water necessary to conserve, protect and resources should not be denied merely allocate the use of groundwater because of the difficulties that may arise in resources of the state and to provide its application. In the absence of legislative a framework for the comprehensive directives, it appears that this rule or theory management and regulation of the is the best that the courts can devise.”) withdrawal, transportation, use, conservation and conveyance of The Arkansas Groundwater Protection and rights to use the groundwater in this Management Act (Arkansas Code §§ state. 15-22-901, et seq.) controls groundwater withdrawals from “critical groundwater Arkansas areas”. Within those areas, only wells with a Some confusion exists over which doctrine maximum potential flow rate of 50,000 or governs groundwater withdrawals in more gallons per day require permits Arkansas. Support for both the Reasonable (Arkansas Code § 15-22-905(3)). Use rule and the Correlative Rights theory 19 A Water Systems Council Report

“[W]ithdrawals of groundwater from water basins and adopt locally-based individual household wells used management plans. Under the act, GSAs are exclusively for domestic use” are exempt given 20 years to implement plans and from the act (Arkansas Code § 15-22-905(4)). achieve long-term groundwater The statute defines “domestic use” as use sustainability. California Water Code § for “ordinary household purposes 10720.5(b) purports to protect existing including human consumption, washing, surface water and groundwater rights, and the watering of domestic livestock, poultry the Act claims to not impact current and animals and the watering of home drought response measures. However, gardens for consumption by the household” much uncertainty exists at this time with (Arkansas Code § 15-22-903). Existing uses respect to the impact that the Act may have may be protected by the statute’s on water rights in California. grandfather provision (Arkansas Code § 15-22-910). California Water Code California §§ 100, 102 and 113 California follows the doctrine of 100. It is hereby declared that Correlative Rights when regulating because of the conditions prevailing groundwater (Katz v. Walkinshaw, 141 Cal. in this State the general welfare 116, 70 P. 663 (1902), 74 P. 766 (1903)). requires that the water resources of Within the framework of the doctrine, the the State be put to beneficial use to state adheres to the following priority: 1) the fullest extent of which they are overlying rights—absolute right to capable, and that the waste or withdraw water beneath the land; 2) unreasonable use or unreasonable appropriative rights—taking of any water method of use of water be for other than riparian or overlying use; and prevented, and that the conservation 3) prescriptive rights—rights against either of such water is to be exercised with overlying or appropriative holders through a view to the reasonable and adverse possession. Percolating beneficial use thereof in the interest groundwater does not fall within the state’s of the people and for the public permit and license system. welfare. The right to water or to the State regulation of groundwater was very use or flow of water in or from any limited until the passage of the California natural stream or watercourse in this Sustainable Groundwater Management Act State is and shall be limited to such in 2014, which became effective on January water as shall be reasonably 1, 2015. Due to the absence of statewide required for the beneficial use to be regulation prior to this act, some water served, and such right does not and districts, as well as some local governments, shall not extend to the waste or regulate groundwater pursuant to either unreasonable use or unreasonable general or special acts of the legislature. method of use or unreasonable method of diversion of water. The California Sustainable Groundwater Management Act (California Water Code, 102. All water within the State is the Division 6, Part 2.74, §§ 10720, et seq.) was property of the people of the State, passed in the wake of one of the most but the right to the use of water may severe droughts in the history of the state. be acquired by appropriation in the The Act requires the formation of local manner provided by law. groundwater sustainability agencies (GSAs) that must assess conditions in their local 20 A Water Systems Council Report

113. It is the policy of the state that tributary groundwater in Colorado. groundwater resources be managed Groundwater that is neither hydrologically sustainably for long-term reliability connected nor minimally connected to any and multiple economic, social, and surface stream is considered nontributary environmental benefits for current and does not fall within the doctrine of and future beneficial uses. Prior Appropriation but is regulated by Sustainable groundwater statute (Park County Sportsmen’s Ranch LLP management is best achieved locally v. Bargas, 986 P.2d 262 (Colo. 1999)). See through the development, also, State v. Southwestern Colo. Water implementation, and updating of Conserv. Dist., 671 P.2d 1294 (Colo. 1983). plans and programs based on the The right to withdraw nontributary best available science. groundwater is based upon overlying land ownership with no diversion requirement A recent case reexamines the application of and with available quantity determined by the public trust doctrine to groundwater in a one hundred year aquifer life expectancy California. The question presented in (Colo. Rev. Stat. § 37-90- 103(10.5)). Environmental Law Foundation v. State However, such right is contingent upon Water Resources Control Board, 2014 WL being granted a permit or court decree 8843074 (Cal.Super. (Trial Order) Super. Ct., (Bayou Land Co. v. Talley, 924 P.2d 136 (Colo. Sacramento County 2014), is whether the 1996); Chatfield East Well Co., Ltd. v. Chatfield public trust doctrine applies to East Property Owner’s Ass’n, 956 P.2d 1260 “groundwater so hydrologically connected (Colo. 1998)). Applications for to a navigable river that its extraction harms appropriation of designated groundwater trust uses of the river”. The case involves are made to the Colorado Ground Water the Scott River. The plaintiffs assert that the Commission (Colo. Rev. Stat. § river has experienced decreased flows due 37-90-107(1)). Nondesignated, nontributary to groundwater pumping. groundwater appropriations are allocated The court ruled in favor of the plaintiffs. on the basis of land ownership. The matter is now pending and the Title 37 – Water and Irrigation plaintiffs must show the actual impact of groundwater pumping on the river. Article 90 – Underground Water However, if the court’s ruling is upheld, (1) It is declared that the traditional well permits in California would have to policy of the state of Colorado, consider the impact of the groundwater requiring the water resources of this withdrawals on navigable waters. state to be devoted to beneficial use Colorado in reasonable amounts through appropriation, is affirmed with Colorado regulates groundwater under a respect to the designated code that is not identical to, but is based on, groundwaters of this state, as said its surface water regime (Col. Rev. Stat. Ann waters are defined in section §§ 37-90-101 to 37-90-142 (West 1990)). 37-90-103(6). While the doctrine of Colorado classifies groundwater as (a) prior appropriation is recognized, tributary, (b) nontributary or (c) non- such doctrine should be modified to designated, nontributary (Colorado Ground permit the full economic Water Management Act, Colo. Rev. Stat. §§ development of designated 37-90- 101 et seq.; Water Right groundwater resources. Prior Determination and Administration Act of appropriations of groundwater 1969, Colo. Rev. Stat. §§ 37-92-101 et seq.). should be protected and reasonable The rule of Prior Appropriation governs 21 A Water Systems Council Report

groundwater pumping levels methane operators were producing. The maintained, but not to include the ranchers alleged that the coalbed methane maintenance of historical water operators’ use of water interfered with their levels. All designated groundwaters priority rights. in this state are therefore declared to Coalbed methane natural gas is naturally be subject to appropriation in the absorbed on the internal surface of coal manner defined in this article. while in the ground. Groundwater fills the (2) The general assembly finds and cleats of the coal and the hydrostatic declares that the allocation of pressure keeps the methane in place. nontributary groundwater pursuant Coalbed methane is produced in the area by to statute is based upon the best drilling wells 2,000–3,000 feet below the available evidence at this time. The surface and pumping the groundwater. The general assembly recognizes the removal of the water reduces the unique, finite nature of nontributary hydrostatic pressure, bringing the methane groundwater resources outside of gas to the surface. The water that was designated groundwater basins and removed is generally later reinjected with declares that such nontributary underground injection control wells into groundwater shall be devoted to formations that lie deeper than the aquifer beneficial use in amounts based from which the methane was produced. upon conservation of the resource The key question in the case involved and protection of vested water whether the extraction of the water in rights. Economic development of coalbed methane production constituted a this resource shall allow for the “beneficial use,” which requires a permit reduction of hydrostatic pressure and priority water rights. “Beneficial use is levels and aquifer water levels defined under Colorado law as “the use of consistent with the protection of that amount of water that is reasonable and appropriative rights in the natural appropriate under reasonably efficient stream system. The doctrine of prior practices to accomplish without waste the appropriation shall not apply to purpose for which the appropriate is nontributary groundwater. To lawfully made” Colo. Rev. Stat. § continue the development of 37-92-103(4). nontributary groundwater resources consonant with conservation shall The coalbed methane operators (and the be the policy of this state. Such State Engineer) argued that the water shall be allocated as provided groundwater was an unwanted byproduct in this article upon the basis of of the process and therefore “beneficial use” ownership of the overlying land. did not exist. The court disagreed, holding This policy is a reasonable exercise that the operators “used” the water, by of the general assembly’s plenary extracting it from the ground, to power over this resource. “accomplish” the “purpose” of releasing methane gas. Therefore, coalbed methane The Colorado Supreme Court decided a operators must obtain priority water rights very important case in 2009 involving the and a permit to withdraw the water. large amounts of groundwater used in coalbed methane production. In Vance v. Wolfe, 205 P.3d 1165 (2009), a group of ranchers filed suit against coalbed methane producers. The ranchers held priority water rights in the same aquifer that the coalbed

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Connecticut natural or artificial, public or private, which are contained within, The Connecticut legislature passed a flow through or border upon this comprehensive permitting process covering state or any portion thereof. groundwater and surface water in 1982 (Conn. Gen. Stat. §§ 22a-366, et seq.). Delaware Diversions prior to July 1, 1982 and Delaware applies a Reasonable Use rule for registered prior to July 1, 1983 are groundwater. In MacArtor v. Graylan Crest grandfathered (Conn. Gen. Stat. § 22a-368). III Swim Club, Inc., a swim club was sued to In addition, limited exemptions include prevent it from using a deep well to the withdrawals where the maximum draw detriment of plaintiff’s shallow well. The fails to exceed 50,000 gallons within a 24- Court of Chancery held that under the hour period (Conn. Gen. Stat. § 22a-377(a) circumstances, defendant swimming club (2)). would be enjoined from use of its deep well The permit regime includes general permits to fill its swimming pool, unless certain for where the activity would cause minimal conditions were met. environmental effects when conducted In MacArtor, the court recognized the separately and would cause only minimal difficulty of allocating groundwater. “This cumulative environmental effects, and will case raises in capsule form very important have no adverse effects on certain existing problems of allocation of rights in uses (Conn. Gen. Stat. § 22a-378a(a)). percolating water. It is not susceptible of an Permits may be temporarily suspended or easy solution, because the controlling test is altered in emergencies (Conn. Gen. Stat. § objective reasonableness” (MacArtor v. 22a-378(a)). Graylan Crest III Swim Club, Inc., 187 A.2d Commentators debate whether Connecticut 417 (Del. Ch. 1963)). The court went on to retains common law water rights. City of provide its description of “reasonableness.” Waterbury v. Town of Washington, 260 Conn. “The doctrine of ‘reasonable user’ 506, 800 A.2d 1102 (2002) contains an commends itself here. This rule permits the extensive analysis but fails to resolve the court to consider and evaluate the various issue. If common law rights survive, factors on both sides and arrive at an Connecticut applies the Absolute Dominion ‘accommodation’ of the conflicting rights, if rule (Roath v. Driscoll, 20 Conn. 533 (1850)). that is feasible. It also permits the court to consider the intentions of the offending General Statutes of Connecticut party and his actions subsequent to the Title 22a discovery of the consequences of his use of the water” (Id., at 419). Environmental Protection However, any withdrawal of groundwater Chapter 4461 Water Resources or surface water requires a permit (7 Del. Sec. 22a-367. Definitions. As used in Code Ann. § 6003(a)(3)). Very limited sections 22a-365 to 22a-378, inclusive exemptions apply certain uses of surface water, mostly involving limited rights to (9) “Waters” means all tidal waters, damming (Del. Code Ann. § 6029). harbors, estuaries, rivers, brooks, Agricultural irrigation wells may watercourses, waterways, wells, automatically receive permits if certain springs, lakes, ponds, marshes, detailed conditions are met (Del. Code Ann. drainage systems and all other § 6010(h); Del. Admin. Code § 7303(5.6)(1)). surface or underground streams, bodies or accumulations of water, 23 A Water Systems Council Report

Florida supply utilities, and others. The initiative seeks to form a framework to address the Florida uses a unique system of long-term water supply needs of Central groundwater rights. The state legislature Florida while preventing harm to water adopted a comprehensive water use and resources (in particular, the Floridian management statute in 1972 (Water aquifer). Subsection (d) of the statute Resources Act of 1972, Chapter 373 of the provides that: “Developing water sources as Florida Statutes). The statutes set out a two- an alternative to continued reliance on the tier administrative structure. Five Floridan Aquifer will benefit existing and independently functioning water future water users and natural systems management districts carry out the day-to- within and beyond the boundaries of the day functions under the system. At the state Central Florida Water Initiative.” level, the Department of Environmental Florida Statutes Regulation (DER) administers the Act. DER delegates regulation of water wells (Fla. Title XXVIII – Natural Resources; Stat. ch. 373, Part III) and consumptive use Conservation, Reclamation, and Use permitting (Fla. Stat. ch. 373, Part II). Only Part II – Permitting Of domestic consumption of water by Consumptive Uses of Water individuals is exempted from the permit requirements. 373.223 Conditions for a permit. The Florida Supreme Court ruled that the (1) To obtain a permit pursuant to Act terminated common-law rights in the provisions of this chapter, the groundwater and surface water (Village of applicant must establish that the Tequesta v. Jupiter Inlet Corp., 371 So.2d 663 proposed use of water: (Fla.), cert. denied, 444 U.S. 965 (1979)). Although the Tequesta case found that no (a) Is a reasonable-beneficial water right exists without a permit, use as defined in s. 373.019; subsequent cases have pulled back from (b) Will not interfere with that conclusion somewhat. For example, in any presently existing legal Shick v. Florida Department of Agriculture, 504 use of water; and (c) Is So.2d 1318 (Fla. 1987), landowners brought consistent with the public an inverse condemnation action against the interest. Department for negligently contaminating landowners’ groundwater in privately 373.019 Definitions. owned wells. The court distinguished When appearing in this chapter or in Tequesta, noting that the landowners were any rule, regulation, or order deprived of the use of existing water in their adopted pursuant thereto, the well and pipes. Therefore, the court found following words shall, unless the that the landowners had a property right in context clearly indicates otherwise, that existing water. mean: In 2016, increasing concerns about reliance (16) “Reasonable-beneficial use” on the Floridian Aquifer for water supply in means the use of water in such Central Florida, the state legislature quantity as is necessary for adopted Fla. Stat. § 373.0465. This provision economic and efficient utilization for creates the Central Florida Water Initiative, a purpose and in a manner which is a collaborative process among state both reasonable and consistent with agencies, water management districts in the public interest central Florida, regional public water

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Georgia The State has an obligation to protect, control and regulate the use Georgia uses the common law Absolute of Hawaii’s water resources for the Dominion rule for groundwater. So long as benefit of its people. The legislature the withdrawer is not motivated by malice, shall provide for a water resources the landowner may withdraw as much agency which, as provided by law, water as he pleases (St. Amand v. Lehman, shall set overall water conservation, 120 Ga. 253 (1904)). The Groundwater Use quality and use policies; define Act of 1972 (O.C.G.A. sections 12-5-90 to beneficial and reasonable uses; 12-5-107) modifies this rule to some degree protect ground and surface water by requiring a permit to “withdraw, obtain resources, watersheds and natural or utilize” more than 100,000 gallons of stream environments; establish groundwater per day “for any criteria for water use priorities while purpose” (O.C.G.A. section 12-5-96(c)(4)). assuring appurtenant rights and Code of Georgia existing correlative and riparian uses and establish procedures for Title 12. Conservation and Natural regulating all uses of Hawaii’s water Resources resources. Chapter 5. Water Resources Hawaii has applied the Correlative Rights Article 3. Wells and Drinking Water approach to groundwater in previous cases. In the Matter of Water Use Permit Part 2. Ground-Water Use Applications, 94 Haw. 97, 9 P3d 409 (2000) Generally involved a contested hearing related to a ditch system for collecting fresh surface 12-5-91 Declaration of policy. water and dike-impounded groundwater. The general welfare and public interest In its decision, the Supreme Court of require that the water resources of the state Hawaii stated that “[T]his state continues to be put to beneficial use to the fullest extent recognize the ‘correlative rights rule.’” The to which they are capable, subject to court went on to caution that “groundwater reasonable regulation in order to conserve rights have never been defined with these resources and to provide and exactness and the precise scope of those maintain conditions which are conducive to rights have always remained subject to the development and use of water development.” resources. Groundwater withdrawals are further Georgia adopted a State Water Plan in early restricted in water management areas (Haw. 2008. The plan divides the state into ten Rev. Stat. Ann. § 174C-44). All new uses regional water planning councils by within a water management district must political boundaries adopted from the obtain a permit prior to initiation of the use, Councils of Government. The plan does not and existing uses must have obtained a directly affect water rights, but may prove permit by July 1, 1987 or within one year of important in the future. The first phase of the designation of the area., whichever is the plan requires an assessment of state later (Haw. Rev. Stat. Ann. § 174C-44). water resources. “Domestic consumption for individual users” is exempted from the permit Hawaii requirement (Haw. Rev. Stat. Ann. § Hawaii Constitution Art. 11, § 7 174C-48(a)).

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In the Matter of Water Use Applications, 94 42-106. Priority. As between Haw. 97, 9 P.3d 409 (2000), the Hawaii appropriators, the first in time is first in Supreme Court held that a doctrine similar right. to the Public Trust doctrine applies to Chapter 2 groundwater. This ruling makes Hawaii the first and thus far only state to so hold. Appropriations of Water – Permits, However, the unique history and legal Certificates, and Licenses – Survey origins of the Kingdom of Hawaii, relied on heavily by the court, make it unlikely that 42-226. Groundwaters Are Public other courts will follow suit. In addition, the Waters. The traditional policy of the court favorably cited the California Court’s state of Idaho, requiring the water ruling in National Audubon Society v. Superior resources of this state to be devoted Court, 33 Cal.3d 419, cert. denied, 464 U.S. to beneficial use in reasonable 977 (1983) in deviating from the mainstream amounts through appropriation, is understanding of the public trust doctrine. affirmed with respect to the The Hawaii Supreme Court reaffirmed the groundwater resources of this state application of the public trust to as said term is hereinafter defined groundwater in two recent cases: In re Wai and, while the doctrine of “first in Ola O Molokai and Molokai Ranch, 103 Haw. time is first in right” is recognized, a 401, 83 P.3d 664 (2004); In re Waiahole (II), reasonable exercise of this right shall 105 Haw. 1, 93 P.3d 643 (2004). not block full economic development of underground water Idaho resources. Prior appropriators of underground water shall be Idaho has declared groundwater to be protected in the maintenance of property of the state and subject to Prior reasonable groundwater pumping Appropriation rules (Idaho Code sections levels as may be established by the 42-103 and 42-229; Idaho Code § 42-226 director of the department of water (Michie 1996)). Subject to beneficial use in resources as herein provided. In reasonable amounts, landowners seeking to determining a reasonable make withdrawals must receive a permit groundwater pumping level or (Idaho Code § 42-217 (Michie 1996)). levels, the director of the Conflicts are determined based on the department of water resources shall doctrine of “first in time is first in consider and protect the thermal right” (Idaho Code § 42-106 (Michie 1996)). and/or artesian pressure values for One exception to this rule exists: a low temperature geothermal “beneficial use” right to groundwater may resources and for geothermal still be established for domestic purposes. resources to the extent that he These beneficial use rights are exempt from determines such protection is in the permit requirements (https:// public interest. All groundwaters in www.idwr.idaho.gov/files/water-rights/ this state are declared to be the water-rights-brochure.pdf) (2015). property of the state, whose duty it Title 42 shall be to supervise their appropriation and allotment to those Irrigation and Drainage – Water diverting the same for beneficial use. Rights and Reclamation Chapter 1 Appropriation of Water – General Provisions

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This act shall not affect the rights to 45/3. Purpose the use of groundwater in this state § 3. Purpose. The general purpose acquired before its enactment. Any and intent of this Act is to establish a application for a water permit that means of reviewing potential water seeks to transfer groundwater conflicts before damage to any outside the immediate groundwater person is incurred and to establish a basin as defined by the director of rule for mitigating water shortage the department of water resources conflicts by: for the purpose of irrigating five thousand (5,000) or more acres on a (a) Providing authority for continuing basis or for a total County Soil and Water volume in excess of ten thousand Conservation Districts to (10,000) acre feet per year, the receive notice of incoming application must first be approved substantial users of water. by the director of the department of water resources and then by the (b) Authorizing Soil and Idaho legislature. Each shall give Water Conservation Districts due consideration to the local to recommend restrictions on economic and ecological impact of withdrawals of groundwater the project or development so in emergencies. proposed. (c) Establishing a “reasonable Illinois use” rule for groundwater withdrawals. Illinois is a party to the Great Lakes Compact. See the section describing the Indiana impact of the Great Lakes Compact on Indiana is a party to the Great Lakes water rights. Compact. See the section describing the The Illinois Water Use Act modified Illinois impact of the Great Lakes Compact on law by rejecting the Absolute Dominion water rights. doctrine for groundwater and replacing it Indiana uses the common law Absolute with Reasonable Use doctrine based upon Dominion rule to regulate groundwater, but the riparian doctrine followed with regard has supplemented it with some to surface water (Water Use Act of 1983, 525 administrative regulation. For example, the Ill. Comp. Stat. Ann. 45/3(c); Bridgeman v. state has the power to restrict the use of Sanitary Dist., 164 Ill. App.3d 287, 517 N.E. high capacity wells that interfere with lower 2d 309 (1987)). The Act does not require a capacity wells or that cause environmental permit for withdrawals. However, during damage to public lakes (Ind. Code Ann. § water emergencies, local soil and water 14-25-4-12 (Michie 1998)). conservation districts may recommend restrictions on withdrawal to the Illinois In 1983, in Wiggins v. Brazil Coal & Clay Department of Agriculture in order to Corp., 452 N.E.2d 958 (Ind. 1983), the preserve an adequate water supply (525 Ill. Indiana Court of Appeals adopted the Comp. Stat. Ann. 45/5.1). Restatement of Torts rule (i.e., Beneficial Purpose doctrine). However, on appeal, the Illinois Compiled Statutes Indiana Supreme Court vacated the Chapter 525. Conservation Act decision and relied on the English rule (i.e., Absolute Dominion rule). In Wiggins, 45. Water Use Act of 1983 property owners brought action against a

27 A Water Systems Council Report mining corporation alleging that mining Sec. 3. It is a public policy of the activities caused a loss of water in a lake on state in the interest of the economy, their property. The court noted that, while health, and welfare of Indiana and the legislature enacted restraints on the use the citizens of Indiana to conserve of groundwater, the court did not view and protect the groundwater them as having altered the common law resources of Indiana and for that property status of groundwater. purpose to provide reasonable regulations for the most beneficial A 2011 decision by the Indiana Supreme use and disposition of groundwater Court calls Wiggins into question. Town of resources. Avon v. West Central Conservancy District, 957 N.E.2d 598 (2011), involves an In 2006, Indiana established a Water ordinance passed by the Town of Avon that Shortage Task Force. The duties of the Task prohibits the withdrawal of water “from a Force include preparation of a biennial watercourse” for “retail, wholesale, or other report on the status of current surface water mass distribution” unless done by or on and groundwater withdrawals in the state behalf of Avon. The ordinance defines (see Indiana Code § 14-25-14-1, et seq.). watercourse as including “groundwater, Iowa aquifers, and/or any other body of water whether above or below ground”. In Barclay v. Abraham, 96 N.W. 1080 (Iowa Landowners filed suit, claiming that the 1903), the Iowa Supreme Court held that the ordinance exceeded the authority of the Correlative Rights doctrine applies to town and violated their groundwater rights. groundwater. In Barclay, the defendant installed a three-inch in diameter well on Whether the aquifer was a “watercourse” his farm near a creek to which he dug a played a key role in the decision. State law ditch and allowed the water to flow allows a local government to “regulate the unrestrained through the creek to the land taking of water, or causing or permitting below. This resulted in stopping the flow of water to escape, from a water to plaintiff’s wells at his house. At a watercourse” (Indiana Code § 36-9-10). The final hearing, an injunction was made court found that a groundwater aquifer is a permanent. The court stated that “there is “watercourse” and that Avon could regulate no doubt but defendant had the right to withdrawals. The court distinguished make such beneficial use of the water in the Wiggins, saying that the water in that case improvement of his land as he might “percolated in the ground “below the choose. But it does not follow that he had surface of the earth, in hidden recesses, the right to draw from this reservoir within without a known channel or course””. the earth wherein nature had stored water However, there was no indication in Avon in large quantities for beneficial purposes that the aquifer there was not percolating merely to waste or carry out a design to groundwater. Local governments in injure those having equal access to the same Indiana, therefore, may have broad powers supply.” to regulate groundwater withdrawals. Iowa uses an integrated system which Title 14. Natural and Cultural coordinates groundwater withdrawal with Resources surface water needs (Linda A. Malone, The Article 25 Necessary Interrelationship between Land Use and Preservation of Groundwater Resources, 9 Chapter 3. Water Rights; UCLA J. Envtl. L. & Pol’y 1 (1990)). The Groundwater Iowa Water Law was enacted by the IC 14-25-3-3 legislature in 1957. Any person who 28 A Water Systems Council Report withdraws or diverts more than 25,000 in Time, First in Right seniority system gallons of water during a period of 24 hours (Kan. Stat. Ann. §§ 82a-707 (1997); https:// or less from any source of groundwater or agriculture.ks.gov/docs/default-source/ surface water must have a Water Use dwr-water-appropriation-documents/ Permit (Id.). A structured priority allocation kwaa_rules_regs57c3ada8d515.pdf? system will only be implemented during sfvrsn=8). Groundwater is controlled by the severe droughts or in local areas due to state based on consultation with local shortage (Id.). groundwater management districts (Kan. State. Ann. §§ 82a-1028(o) (1997)). Iowa Code Kansas Statute No. 82a-707 Title XI. Natural Resources Chapter 82a. Waters and Subtitle 1. Control of Environment Watercourses Chapter 455B. Jurisdiction of Article 7. Appropriation of Water Department of Natural Resources Division For Beneficial Use III. Water Quality 82a-707. Principles governing Part 4. Water Allocation and Use; appropriations; priorities. Flood Plain Control (a) Surface or groundwaters of the 455B.269. Taking water prohibited state may be appropriated as herein 1. A person shall not take water from provided. Such appropriation shall a natural watercourse, underground not constitute ownership of such basin or watercourse, drainage water, and appropriation rights shall ditch, or settling basin within this remain subject to the principle of state for any purpose other than a beneficial use. nonregulated use except in (b) Where uses of water for different compliance with the sections of this purposes conflict, such uses shall part which relate to the withdrawal, conform to the following order of diversion, or storage of water. preference: Domestic, municipal, However, existing uses may be irrigation, industrial, recreational continued during the period of the and water power uses. However, the pendency of an application for a date of priority of an appropriation permit. right, and not the purpose of use, 2. A person, other than the aquifer determines the right to divert and storage and recovery permittee, use water at any time when the shall not take treated water from a supply is not sufficient to satisfy all permitted aquifer storage and water rights that attach to it. The recovery site within this state. holder of a water right for an inferior beneficial use of water shall Kansas not be deprived of the use of the Kansas maintains a Prior Appropriation water either temporarily or groundwater permit system for permanently as long as such holder groundwater (Ronald Kaiser and Frank is making proper use of it under the Skillern, Deep Trouble: Options for Managing terms and conditions of such the Hidden Threat of Aquifer Depletion in holder’s water right and the laws of Texas, 32 Tex. Tech. L. Rev. 249 (2001)). The this state, other than through right to use water is determined by a First condemnation.

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(c) As between persons with Title XII. Conservation and State appropriation rights, the first in time Development is the first in right. The priority of Chapter 151. Geology and Water the appropriation right to use water Resources for any beneficial purpose except domestic purposes shall date from 151.120 Public Water of the time of the filing of the Commonwealth, What Constitutes application therefor in the office of the chief engineer. The priority of (1) Water occurring in any stream, the appropriation right to use water lake, groundwater, subterranean for domestic purposes shall date water or other body of water in the from the time of the filing of the Commonwealth which may be application therefor in the office of applied to any useful and beneficial the chief engineer or from the time purpose is hereby declared to be a the user makes actual use of water natural resource and public water of for domestic purposes, whichever is the Commonwealth and subject to earlier. control or regulation for the public welfare as provided in KRS Kentucky Chapters 146, 149, 151, 262 and 350.029 and 433.750 to 433.757. In United Fuel Gas Co. v. Sawyers, 259 S.W.2d 466 (Ky. 1953), Kentucky affirmed its (2) Diffused surface water which adherence to the American Reasonable Use flows vagrantly over the surface of rule: “In this state, in accordance with the ground shall not be regarded as modern trends, even in England, we have public water, and the owner of land rejected the severe doctrine of Rylands v. on which such water falls or flows Fletcher at least insofar as it makes one in shall have the right to its use. Water the use of his own property practically an left standing in natural pools in a insurer against injury to his neighbor’s natural stream when the natural property. Kentucky law is in accord with flow of the stream has ceased, shall the ‘American rule,’ that in the absence of not be regarded as public water and negligence there is no liability if there was a the owners of land contiguous to legitimate and reasonable use.” United Fuel that water shall have the rights to its Gas Co. involved an action by a landowner use. against a gas company for contamination of a water well allegedly caused by a nearby 151.140 Withdrawal of Water From gas well. Public Waters, Permit Required; Exceptions Since 1966, anyone wishing to use “public water,” defined by statute as basically all No person, business, industry, city, county, water, must apply for a permit to water district, or other political subdivision “withdraw, divert, or transfer such shall have the right to withdraw, divert, or water” (Ky. Rev. St. § 151.150(1)). However, transfer public water from a stream, lake, water for domestic purposes, agriculture groundwater source or other body of water, (including irrigation), oil and gas recovery, unless such person, business, industry, city, and steam power plants are exempt uses county, water district or other political (Ky. Rev. St. § 15.1.140). subdivision has been granted a permit by the cabinet for such withdrawal, diversion, Kentucky Revised Statutes or transfer of water. Provided, however, no permit shall be required for and nothing

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herein shall interfere with the use of not own fugitive sub-surface minerals in water for agricultural and domestic place and that therefore landowners could purposes including irrigation; and not prevail (Adams v. Grigsby, 152 So.2d 619 no permit shall be required if the (La. Ct. App. 1963)). amount of water withdrawn, Louisiana passed statutory provisions diverted or transferred is less than seeking to promote the efficient use of the amount established by groundwater in Chapter 13a of Title 38, regulation and no permit shall be Utilization of Groundwater Resources (La. required for water used in the Rev. Stat. Ann. § 38:3091-3097). These production of steam generating provisions require all users of groundwater plants of companies whose retail to register and provide usage information. rates are regulated by the Kentucky Wells with a capacity of over fifty thousand Public Service Commission or for gallons per day must also be registered. A which plants a certificate of five parish area surrounding Baton Rouge environmental compatibility from has been designated a Capital Area such commission is required by law, Groundwater Conservation District, subject or water injected underground in to stricter regulations (La. Rev. St. Ann. conjunction with operations for the Sections 38:3071 to 38:3084). Within these production of oil or gas. districts, permits are required for the Louisiana drilling or construction of wells having a capacity in excess of fifty thousand gallons The Louisiana courts have “effectively per day (La. Rev. St. Ann. § 38:3076.A.(2)). adopted the Absolute Dominion rule and specifically rejected the application of the Despite judicial pronouncements on the American rule or any of the variations of issue, groundwater law in Louisiana the Correlative Rights doctrine, even remains vague. “The subject of though admitting that the American rule groundwater use rights within the State is was perhaps the ‘more modern and popular an area with a significant amount of legal rule,’ and even though the Louisiana Civil uncertainty. It is therefore the opinion of Code might well have been interpreted to this writer [the Louisiana Attorney General] reject the absolute ownership that this unsettled area might be more doctrine” (James M. Klebba, Water Rights appropriately addressed by the legislative and Water Policy in Louisiana: Laissez Faire branch of government” (La. Atty. Gen. Op. Riparianism, Market Based Approaches, or a No. 83-522 (1983)). New Managerialism?, 53 La. L. Rev. 1779 Louisiana’s groundwater laws have drawn (1993)). criticism that they have not developed with In Adams v. Grigsby, 152 So.2d 619 (La. the concerns of conservation and regulation App.), writ refused, 244 La. 662, 153 So.2d of use as guiding principles (Note: Ground 880 (1963), landowners sued an oil operator Water: Louisiana’s Quasi-Fictional and Truly to enjoin him from using 2,000 to 2,800 Fugacious Mineral, 44 La. L. Rev. 1123, 1132 barrels of sub-surface water a day in (1984)). Liability may be based only on secondary recovery of oil and gas from a negligence or deliberately harmful conduct. unitized formation. The landowners argued Neither the types of competing uses that the oil operator was depleting the involved nor precedence of use are subterranean fresh water reservoir that considered. Furthermore, nothing prevents supplied the homes of the landowners. The a landowner or lessee from entirely Court of Appeals held that water is a depleting the water-bearing structure or mineral within the rule that landowners do formation. Louisiana’s legal framework as

31 A Water Systems Council Report to groundwater has been accurately 1. Definitions. As used in this characterized as “the rule of the biggest section, unless the context indicates pump” (Id.). otherwise, the following terms have the following meanings. Maine A. “Beneficial domestic use” In Maddocks v. Giles, 728 A.2d 150 (Me. means any groundwater 1999), the Maine courts reiterated their used for household purposes adherence to the Absolute Dominion rule: essential to health and safety, “We decline to abandon the absolute whether provided by dominion rule… we are not convinced that individual wells or through the absolute dominion rule is the wrong public supply systems. rule for Maine.” In Maddocks, owners of property adjacent to a gravel pit brought an B. “Groundwater” means all action alleging that excavation activities the waters found beneath the caused an underground spring flowing surface of the earth beneath property owners’ land to run dry. C. “Preexisting use” means The court recognized there have been some any use which was attempts in Maine to change the doctrine; undertaken by a public however, the legislature has yet to act. “We water supplier, a landowner are further constrained in making the or lawful land occupant or a requested change because the Legislature predecessor in interest of has taken action in this area by creating the either of them, at any time Water Resources Management Board to do a during the period of 3 years comprehensive study of water law in prior to the commencement Maine. The Board reported to the of the use which resulted in Legislature and suggested that it adopt the interference. reasonable use principles. The Legislature chose to leave the common law as it 2. Cause of action created. Subject to currently stands.” the limitations of subsection 3 and except as provided by Title 23, It should be noted that the Maine section 652, a person is liable for the Legislature has enacted an exception to the withdrawal of groundwater, Absolute Dominion rule by creating liability including use of groundwater in when a person withdraws groundwater in heat pump systems, when the excess of household purposes for a single- withdrawal is in excess of beneficial family home and the withdrawal interferes domestic use for a single-family with the preexisting household use of home and when the withdrawal groundwater (38 Me. Rev. Stat. Ann. tit. 38 § causes interference with the 404(1)-(2) (West 2002)). preexisting beneficial domestic use Maine Revised Statutes of groundwater by a landowner or lawful land occupant. Title 38: Waters and Navigation Chapter 3: Protection and Improvement of Waters Subchapter 1: Environmental Protection Board Article 1-B: Groundwater Protection Program 32 A Water Systems Council Report

Maryland state must issue a permit upon application (Md. Code, Environment, § 5-502(c)(1)). Maryland adopted the American rule in Finley v. Teeter Stone, Inc., 248 A.2d 106 (Md. Maryland law establishes priority use in 1968). In Finley, farm owners sued a water supply emergencies (Md. Code, quarrying company for damage to a farm as Environment, § 5-502(d)). In that the result of a sinkhole caused during the circumstance, the following priorities apply, pumping of percolating water from a in this order: quarry. The Appeals Court found the (1) Domestic and municipal uses for company’s use of the land was not sanitation, drinking water and public health unreasonable, and therefore denied relief. and safety; In addition, Maryland’s water use statutes (2) Agricultural uses, including the (Md. Code, Environment, §§ 5-501, et seq.) processing of agricultural products; and require a permit to appropriate surface or groundwater. However, the statutory (3) All other uses. regime fails to apply to use of water for: The statute also requires review of most • Domestic purposes other than for permits every 3 years, and the “correction” heating and cooling; of the permit if the water “is not used or is not needed” (Md. Code, Environment, § or 5-511). • Agricultural purposes, if the Recent administrative interpretations have average annual water use is less caused uncertainty as to the groundwater than 10,000 gallons per day (with rights of landowners in Maryland. Despite some exceptions). the court rulings that establish Maryland as (Md. Code, Environment, § 5-502(b)). an American rule state, the Maryland Department of the Environment (MDE) has In 2007, Maryland added another exception begun to use its own interpretation of the to the water use statutes under Maryland Reasonable Use doctrine, mixed with parts Code, Environment, § 5-502(b). No permit is of other, completely different, groundwater needed for the use of groundwater at an rights regimes, to determine individual average annual water use of 5,000 gallons of water rights. The interpretation presently water per day or less, so long as the use is puts public water suppliers and not for a public water system (defined in nonresidential users of groundwater in a the code), or will not occur within a water difficult situation. Continued adherence to management strategy area. In addition, the rule could infringe on private water these users must file a notice of exemption rights in a wide range of circumstances. with the state at least thirty days before the use begins (Md. Code, Environment, § Specifically, in granting withdrawal 5-502(b)(4). permits, which are required for almost all uses except agricultural uses under 10,000 A person using less than an annual average gallons per day and domestic water wells, of 10,000 gallons of water per day for the MDE calculates recharge rates for the agricultural purposes may apply for a land area. The formula uses a very permit to appropriate or use waters of the conservative estimate of recharge based on State, but apparently is not required to do the 100-year drought. In most parts of so (Md. Code, Environment, § 5-502(c)(2)). Maryland, the formula yields an estimate of Agricultural uses existing prior to July 1, slightly over 300 gallons of water per day 1988, receive grandfathered rights and the per acre. The applicant must “own or have

33 A Water Systems Council Report control” over sufficient land area such that day (Mass. Gen. L. 21G § 2). Persons the recharge at least equals the amount wishing to engage in new withdrawals proposed to be withdrawn. For land uses must obtain a permit under more rigorous that consume large amounts of water, provisions of the act (Mass. Gen. L. 21G § expansive amounts of land would have to 7). These provisions also exclude non- be owned or controlled. consumptive uses (Mass. Regs. Code tit. 310, § 36.38). Massachusetts Michigan In Massachusetts, percolating groundwater is considered part of the land itself (Davis v. Michigan is a party to the Great Lakes Spaulding, 157 Mass. 431, 32 N.E. 650 Compact. See the section describing the (1892)). Massachusetts appears to use the impact of the Great Lakes Compact on Absolute Dominion rule (Greenleaf v. water rights. Francis, 35 Mass. (18 Pick.) 117 (1836)). In Groundwater withdrawals in Michigan pumping, reasonable precautions must be historically have been governed by the rule undertaken to prevent subsidence of of Reasonable Use (Schenk v. City of Ann adjoining property (Gamer v. Town of Milton, Arbor, 196 Mich. 75, 163 N.W. 109 (1917)). In 346 Mass. 617, 195 N.E.2d 65 (1964)). Gamer Maerz v. United States Steel Corp., 116 Mich. involved a suit against a town and against App. 710, 713-714, 323 N.W.2d 524 (1982), the excavating contractor hired by the town the Court of Appeals interpreted Schenk as to excavate in the area of the town pond. adopting the Restatement of Torts rule for The court stated “[I]t, is, of course, settled in groundwater withdrawals. However, a year this Commonwealth that a landowner has later, the Court of Appeals held that the absolute ownership in the subsurface Reasonable Use rule applies, citing Schenk percolating water in his land. He may use it (United States Aviex Co. v. Travelers Ins. Co., as he sees fit, even if this results in a loss of 125 Mich. App. 579, 336 N.W.2d 838 (1983)). water in his neighbor’s land.” Additionally, the Michigan legislature However, the Water Management Act enacted the Reasonable Use rule into (Mass. Gen. L. ch. 21G), adopted in 1985, statutory law (MCL § 600.2941). Whether governs all withdrawals of surface and Michigan follows the rule of Reasonable groundwater exceeding 100,000 gallons a Use or the Restatement rule remains day, other than non-consumptive uses unclear, but the Reasonable Use rule (Mass. Gen. L. 21G § 4). The Act appears to be the better interpretation. differentiates between “new” and Michigan Citizens for Water Conservation v. “existing” withdrawals over 100,000 gallons Nestle Waters North America Inc, 479 Mich. a day. Existing withdrawals are defined as 280, 709 N.W.2d 174 (2007), involved the the average withdrawal during the five- often contentious issue of a company year period between January 1, 1981 and bottling water for retail sale. Nestle used a January 1, 1986 (Mass. Gen. L. 21G § 2). spring for the source of the water. The These withdrawals may continue for ten citizens group objected, based mainly upon years, if registered with the state by January the alleged impact of the pumping on 1, 1988 (Mass. Gen. L. 21G § 5). The surface water. The group also argued that withdrawal must then be reregistered every groundwater fell under the Public Trust ten years (Id.). Nonconsumptive doctrine. withdrawals are exempt from registration (Mass. Regs. Code tit. 310, § 36.05). New withdrawals include all other withdrawals exceeding 100,000 gallons a 34 A Water Systems Council Report

The Michigan Court of Appeals found that almost entirely on the Minnesota permitting where surface water and groundwater uses statute. conflict, a reasonable use balancing test In 1973, the Minnesota legislature enacted a should be applied. Applying this test to the permit system for large groundwater case at hand, the court found that if Nestle withdrawals (The Minnesota Water pumped at its maximum rate of 400 gallons Appropriation Law, Minn. Stat. § 105.41). per minute the affected surface water Under the system, withdrawals exceeding would lose 24% of its base flow. The court 10,000 gallons per day or 1 million gallons reasoned that this reduction is per year require a permit. If a conflict arises unreasonable. The case was remanded to among competing users, then the the trial court to determine what pumping Commissioner of Natural Resources may rate would allow both groundwater and resolve the conflict using statutorily defined surface water users a reasonable use of the priorities (Minn. R. § 6115.0740). waters. Minnesota Statutes 2002 The case was then appealed to the Supreme Court of Michigan. That court, in lieu of Chapter 103A Water Policy and granting leave to appeal, held that Information organization and owners lacked standing with respect to lake and wetlands where 103A.204 Groundwater policy. they owned no land (Michigan Citizens for (a) The responsibility for the Water Conservation v. Nestle Waters North protection of groundwater in America Inc, 479 Mich. 280, 737 N.W.2d 447 Minnesota is vested in a (2007)). The Court of Appeals ruling still multiagency approach to stands in Michigan. management. The following is a Minnesota list of agencies and the groundwater protection areas for Minnesota is a party to the Great Lakes which the agencies are primarily Compact. See the section describing the responsible; the list is not impact of the Great Lakes Compact on intended to restrict the areas of water rights. responsibility to only those specified: Little jurisprudence regarding groundwater withdrawals exists in Minnesota. It appears (4) board of water and soil that the rule of Absolute Dominion still resources: reporting on governs groundwater in the state. The groundwater education and Minnesota Supreme Court used the outreach with local semantics of Correlative Rights in government officials, local application to artesian wells (Erickson v. water planning and Crookston Waterworks, Power & Light Co., 111 management, and local cost N.W. 391 (Minn. 1907), affirmed, Erickson v. share programs; Crookston Waterworks, Power & Light Co., 117 N.W. 435 (Minn. 1908)). However, as 103A.211 Water Law policy. applied, the doctrine bears less resemblance The Water Law of this state is to the traditional theory of Correlative contained in many statutes that Rights as practiced in California and more must be considered as a whole to resemblance to the rule of Reasonable Use. systematically administer water Additionally, the decision’s impact may be policy for the public welfare. Water limited to artesian basins and was based law that seems contradictory as applied to a specific proceeding 35 A Water Systems Council Report

creates a need for a forum where the Policy in Louisiana, 53 La. L. Rev. 1779 public interest conflicts involved can (1993)). “Mississippi has been categorized be presented and, by consideration as an absolute ownership state on the basis of the whole body of water law, the of one leading case decided in 1902 (Bd. of controlling policy can be determined Supervisors v. Miss. Lumber Co., 31 So. 905 and apparent inconsistencies (Miss. 1902)). That case, while using the resolved. language of the Absolute Ownership doctrine and apparently explicitly adopting 103G.271 Appropriation and use of that rule, indicates that if faced with an waters. appropriate case, Mississippi would instead Subdivision 1. Permit required. apply the ‘reasonable use’ rule” (Id., citing, Bd. of Supervisors v. Miss. Lumber Co., 31 So. (a) Except as provided in paragraph 905 (Miss. 1902)). (b), the state, a person, partnership, or association, private or public The 1985 Water Resources Act established a corporation, county, municipality, or permit system for surface and groundwater other political subdivision of the withdrawals (1985 Omnibus Water state may not appropriate or use Resources Act, Miss. Code Ann. tit. 51, ch. waters of the state without a water 3). The Act also established a priority for use permit from the commissioner. potable water uses. Exempt from the permit requirement are domestic purposes, defined (b) This section does not apply to as “the use of water for ordinary household use for a water supply by less than purposes, the watering of farm livestock, 25 persons for domestic purposes. poultry and domestic animals, and the (c) The commissioner may issue a irrigation of home gardens and state general permit for lawns” (Miss. Code Ann. § 51-3-3). Also, appropriation of water to a uses existing prior to April 1, 1985, if filed governmental subdivision or to the within three years of that date, were general public for classes of protected as grandfathered rights (Miss. activities that have minimal impact Code Ann. § 51-3-5(4)). upon waters of the state. The Mississippi Code of 1972 (current general permit may authorize more as of 2002) than one project and the appropriation or use of more than Title 51 one source of water. Water use Waters, Water Resources, Water permit processing fees and reports Districts, Drainage, and Flood Control required under subdivision 6 and section 103G.281, subdivision 3, are § 51-3-1. Declaration of policy on required for each project or water conservation of water resources. source that is included under a It is hereby declared that the general general permit, except that no fee is welfare of the people of the State of required for uses totaling less than Mississippi requires that the water 15,000,000 gallons annually. resources of the state be put to Mississippi beneficial use to the fullest extent of which they are capable, that the One commentator has warned against waste or unreasonable use, or “pigeonholing” Mississippi into one unreasonable method of use, of doctrine of groundwater management water be prevented, that the (James M. Klebba, Water Rights and Water conservation of such water be 36 A Water Systems Council Report

exercised with the view to the considering inter alia the persons involved, reasonable and beneficial use thereof their relative positions, the nature of their in the interest of the people, and that uses, the climatic conditions, and other the public and private funds for the relevant factors” (Beck, 460, citing, Higday). promotion and expansion of the Although a pure common-law state, beneficial use of water resources Missouri requires uses exceeding 100,000 shall be invested to the end that the gallons per day to be registered with the best interests and welfare of the Department of Natural Resources. people are served. In Higday, landowners sought a judicial It is the policy of the Legislature that declaration that a city, as an adjoining conjunctive use of groundwater and landowner, was without right to extract surface water shall be encouraged percolating waters from under plaintiffs’ for the reasonable and beneficial use land for sale away from the premises. The of all water resources of the state. court stated “[U]nder the rule of reasonable The policies, regulations and public use as we have stated it, the fundamental laws of the State of Mississippi shall measure of the overlying owner’s right to be interpreted and administered so use the groundwater is whether it is for that, to the fullest extent possible, purposes incident to the beneficial the ground and surface water enjoyment of the land from which it was resources within the state shall be taken. Thus, a private owner may not integrated in their use, storage, withdraw groundwater for purposes of sale allocation and management. if the adjoining landowner is thereby deprived of water necessary for the All water, whether occurring on the beneficial enjoyment of his land.” surface of the ground or underneath the surface of the ground, is hereby Montana declared to be among the basic Montana has always followed the rule of resources of this state to therefore Prior Appropriation regulating belong to the people of this state and groundwater withdrawals (Mont. Code is subject to regulation in accordance Ann. § 85-2-401(1)). However, prior with the provisions of this chapter. appropriators cannot prevent changes by The control and development and later appropriators in the condition of the use of water for all beneficial water occurrence as long as they can still purposes shall be in the state, which, reasonably exercise their water rights in the exercise of its police powers, (Mont. Code Ann. § 85-2-401(1)). All water shall take such measures to users must obtain a permit from the effectively and efficiently manage, Department of Natural Resources prior to protect and utilize the water withdrawing any water (Mont. Code Ann. § resources of Mississippi. 85-2-302). Prior to the Clarks Fork Coalition v. Missouri Tubbs case, discussed below, an exception to this requirement included wells or Missouri follows a modified version of the developed springs with maximum Reasonable Use rule called “comparative appropriations of 35 gallons per minute or reasonable use” to govern groundwater less, not to exceed 10 acre-feet per year. (Higday v. Nickolaus, 469 S.W.2d 859 (Mo. While not requiring a permit, these uses App. 1971)). See also, City of Blue Springs v. must be registered. Certain areas Central Dev. Ass’n, 831 S.W.2d 655 (Mo. App. designated as groundwater control areas, in 1992). Comparative Reasonable Use is addition to disregarding the above “determined on a case-by-case basis 37 A Water Systems Council Report exception, can impose restrictions on resources by making them available groundwater withdrawals, including for appropriation consistent with closing the area to further appropriation this chapter and to provide for the (Mont. Code Ann. § 85-2-506(7)(a)). wise utilization, development, and Additionally, control areas may accord conservation of the waters of the preferences to certain water uses without state for the maximum benefit of its regard to priority dates. Rights acquired people with the least possible prior to 1973 are preserved. The state degradation of the natural aquatic engineer may also set out provisions for ecosystems. In pursuit of this policy, well spacing requirements, well the state encourages the construction constraints, and prior development of facilities that store department approval before well drilling in and conserve waters for beneficial groundwater control areas (except for oil use, for the maximization of the use and gas conservation wells) (Mont. Code of those waters in Montana, for the Ann. § 85-2-506(7)(e)). stabilization of stream-flows, and for groundwater recharge. 85-2-101. Declaration of policy and purpose. (4) Pursuant to Article IX, section 3(1), of the Montana constitution, it (1) Pursuant to Article IX of the is further the policy of this state and Montana constitution, the legislature a purpose of this chapter to declares that any use of water is a recognize and confirm all existing public use and that the waters rights to the use of any waters for within the state are the property of any useful or beneficial purpose. the state for the use of its people and are subject to appropriation for In McGowan v. United States, landowners beneficial uses as provided in this sued for damages resulting from a loss of chapter. appropriated water rights in springs that dried up after construction of an irrigation (2) A purpose of this chapter is to project by the Bureau of Reclamation implement Article IX, section 3(4), of (McGowan v. United States, 206 F. Supp. 439 the Montana constitution, which (D. Mont. 1962)). The court held that, since requires that the legislature provide there was no physical invasion of plaintiff’s for the administration, control, and lands and the source of water for springs regulation of water rights and was percolating waters, the drying up of the establish a system of centralized springs was “damnum absque injuria” [Latin records of all water rights. The “damage without wrongful act”]. As the legislature declares that this system court stated, the “result of it is that the of centralized records recognizing proprietor of the soil, where such water is and establishing all water rights is found, has the right to control and use it as essential for the documentation, he pleases for the purpose of improving his protection, preservation, and future own land, though his use or control may beneficial use and development of incidentally injure an adjoining proprietor.” Montana’s water for the state and its citizens and for the continued In a case that has stretched on for several development and completion of the years, Clark Fork Coalition v. Tubbs was comprehensive state water plan. argued before the Montana Supreme Court on May 18, 2016. The Montana Water Well (3) It is the policy of this state and a Drillers Association (MWWDA) is a party purpose of this chapter to encourage in the case, and the only party representing the wise use of the state’s water 38 A Water Systems Council Report the interests of water wells. The state did Nebraska not appeal the case, leaving the MWWDA In Olson v. City of Wahoo, 248 N.W. 304 (Neb. to fight the battle alone. 1933), the Nebraska Supreme Court rejected the English rule of ownership and adopted The case involves an environmental group the American rule. In embracing the challenging the validity of the exempt well American rule, the court also expressed a regulations in Montana, and has wound its preference for what became a modified way through the state legislature, the state doctrine of Correlative Rights based upon administrative agency and the courts. After users sharing alike in times of shortage the Governor vetoed a compromise bill, the (Stephen D. Mossman, “Whiskey Is for court battle took center stage. Drinkin’ But Water Is for Fightin’ About: A First-Hand Account of Nebraska’s In essence, the lawsuit challenges the Integrated Management of Ground and exempt well regulations in the state, Surface Water Debate and the Passage of particularly the regulation that allows L.B. 108.” 30 Creighton L. Rev. 67 (1996)). As developers to use individual exempt wells stated by the court, “[t]he American rule is in residential subdivisions. The that the owner of land is entitled to environmental group argues that exempt appropriate subterranean waters found wells in those situations should be under his land, but he cannot extract and aggregated to limit the number of exempt appropriate them in excess of a reasonable wells in rural subdivisions. The lower court and beneficial use upon the land which he shocked everyone by not only striking owns, especially if such use is injurious to down the regulation, but by reinstating the others who have substantial rights to the 1987 rule on exempt wells, and ordering waters, and the natural underground rulemaking. The 1987 Rule reads as follows: supply is insufficient for all owners, each is entitled to a reasonable proportion of the An appropriation of water from the same whole…” (Olson, 248 N.W. at 308). source aquifer by two or more groundwater developments, the purpose of which, in the Later Nebraska cases have expanded upon department's judgement, could have been Olson. In Prather v. Eisenmann, 200 Neb. 1 accomplished by a single appropriation. (Neb. 1978), the court stated that the Groundwater developments need not be Nebraska rule, while a combination of the physically connected nor have a common American rule and the Correlative Rights distribution system to be considered a rule from California case law, must be read "combined appropriation." They can be in light of the Nebraska statute governing separate developed springs or wells to preference for use of groundwater. In separate parts of a project or development. Sorensen v. Lower Niobrara Natural Resources Such wells and springs need not be Dist., 221 Neb. 180, 188-89, 376 N.W.2d 539, developed simultaneously. They can be 546 (Neb. 1985), the court held that the developed gradually or in increments. The common law rule of permitting landowners amount of water appropriated from the to use groundwater removed from under entire project or development from these the owner’s land is qualified by the groundwater developments in the same Nebraska rule of Reasonable Use and source aquifer is the "combined Correlative Rights. appropriation."

39 A Water Systems Council Report

The Nebraska Supreme Court also decided a Neb. Rev. Stat. Ann. 46-702. case involving hydrologically connected Declaration of intent and purpose; groundwater and surface water in 2005. In Spear legislative findings T Ranch, Inc. v. Knaub, 691 N.W.2d 116, 269 Neb. 177 (2005), the owner of surface water rights The Legislature finds that ownership of filed suit against well owners, alleging that the water is held by the state for the benefit well owners’ pumping dewatered a creek, of its citizens, that groundwater is one of preventing the surface water rights holder from the most valuable natural resources in exercising those rights. The court refused to the state, and that an adequate supply of apply the prior appropriation system to ground water is essential to the general hydrologically connected groundwater, instead welfare of the citizens of this state and to adopting the Restatement (Second) of Torts rule the present and future development of to decide surface water/groundwater conflicts. agriculture in the state. The Legislature This decision puts well owners in a precarious recognizes its duty to define broad position and creates uncertainty about potential policy goals concerning the utilization liability for previously lawful uses of and management of groundwater and groundwater. to ensure local implementation of those goals. The Legislature also finds that natural resources districts have the legal Nebraska enacted the Groundwater authority to regulate certain activities Management and Protection Act in 1975 (Neb. and, except as otherwise specifically Rev. Stat. Ann. §§ 46-701, et seq. (Michie 2002)). provided by statute, as local entities are The law requires that all wells (except domestic the preferred regulators of activities wells) be registered with the state; that well which may contribute to groundwater spacing rules be followed; and groundwater depletion. control areas be established by regions with aquifer overdrafting and mining (Ronald Kaiser Every landowner shall be entitled to a and Frank Skillern, “Deep Trouble: Options for reasonable and beneficial use of the Managing the Hidden Threat of Aquifer groundwater underlying his or her land Depletion in Texas,” 32 Tex. Tech. L. Rev. 249 subject to the provisions of Chapter 46, (2001)). Local Natural Resource Districts also article 6, and the Nebraska Ground have authority to limit access to aquifers in Water Management and Protection Act certain areas of the state. The act was recently and the correlative rights of other amended to apply a different rule to landowners when the groundwater hydrologically connected groundwater and supply is insufficient to meet the surface water. reasonable needs of all users. The Legislature determines that the goal Groundwater rights are also subject to a shall be to extend groundwater preference statute that prefers domestic users to reservoir life to the greatest extent all other users, and agricultural users to those practicable consistent with reasonable using groundwater for industrial or and beneficial use of the groundwater manufacturing purposes (Neb. Rev. Stat. § and best management practices. 46-613). Groundwater management areas so designated under the Nebraska Groundwater The Legislature further recognizes and Management and Protection Act may impose declares that the management, restrictions on groundwater withdrawals protection, and conservation of including water limits, the requirement of groundwater and the reasonable and metering and moratoria on new well beneficial use thereof are essential to the construction (Neb. Rev. Stat. Ann §46-702. economic prosperity and future well- being of the state and that the public 40 A Water Systems Council Report interest demands procedures for the impact resulting from regulation implementation of management necessary pursuant to the terms of practices to conserve and protect Laws 2007, LB 701. groundwater supplies and to Nevada prevent the contamination or inefficient or improper use thereof. Nevada has been a long adherent to the The Legislature recognizes the need doctrine of Prior Appropriation (see Lobdell to provide for orderly management v. Simpson, 2 Nev. 274 (1866)). Statutory law systems in areas where management passed in 1905 began the state adjudication of groundwater is necessary to of water withdrawals (Nev. Rev. Stat. §§ achieve locally and regionally 533.090 to .320). In 1939, the Nevada determined groundwater legislature enacted a groundwater law (Nev. management objectives and where Rev. Stat. ch. 534). Landowners can only available data, evidence, or other obtain rights to groundwater by permit information indicates that present or from a state engineer (Nev. Rev. Stat. § potential groundwater conditions, 534.050). Single-family homes with an including subirrigation conditions, average use of 1,800 gallons per day or less require the designation of areas with are exempted from the permit requirement special regulation of development (Nev. Rev. Stat. § 534.180). Rights acquired and use. prior to the adoption of the statute are fully protected in perpetuity (Nev. Rev. Stat. § The Legislature finds that given the 533.085). impact of extended drought on areas of the state, the economic prosperity Nev. Rev. Stat. § 534.020 and future well-being of the state is advanced by providing economic Underground waters belong to assistance in the form of providing public and are subject to bonding authority for certain appropriation for beneficial use; natural resources districts as defined declaration of legislative intent. in section 2-3226.01 and in the 1. All underground waters within creation of the Water Resources the boundaries of the state belong to Cash Fund to alleviate the adverse the public, and, subject to all economic impact of regulatory existing rights to the use thereof, are decisions necessary for subject to appropriation for management, protection, and beneficial use only under the laws of conservation of limited water this state relating to the resources. The Legislature appropriation and use of water and specifically finds that, consistent not otherwise. with the public ownership of water held by the state for the benefit of its 2. It is the intention of the citizens, any action by the legislature, by this chapter, to Legislature, or through authority prevent the waste of underground conferred by it to any agency or waters and pollution and political subdivision, to provide contamination thereof and provide economic assistance does not for the administration of the establish any precedent that the provisions thereof by the state Legislature in sections 2-3226.01 and engineer, who is hereby empowered 61-218 or in the future must or to make such rules and regulations should purchase water or provide within the terms of this chapter as compensation for any economic may be necessary for the proper 41 A Water Systems Council Report

execution of the provisions of this New Jersey requires “water diversion” chapter. permits for withdrawals of more than 100,000 gallons of surface water or New Hampshire groundwater (N.J. Stat. Ann. §§ 58:1A-1, et New Hampshire follows the rule of seq). Exemptions include diversions for Reasonable Use when regulating agricultural or horticultural uses (N.J. Stat. groundwater (see Bassett v. Salisbury Mfg. Ann. § 58:1A-7.2). Special rules apply to Co., 43 N.H. 569 (1862); Jones v. Proprietors of diversions for agricultural and horticultural Portsmouth Aqueduct, 62 N.H. 448 (1883)). purposes (N.J. Admin. Code 7:20-1.1, et The New Hampshire Supreme Court has seq.). recognized that the public has an New Mexico ownership interest in groundwater (Coakley v. Maine Bonding & Cas. Co., 136 N.H. 402, The doctrine of Prior Appropriation 618 A.2d 777 (1992) (dicta)). The state governs groundwater withdrawals in New legislature has considered enacting Mexico (N.M. Const. art. XVI, § 2; N.M. Stat. regulations to balance competing private Ann. § 72-12-4). Permits first must be and public interests. A law passed in 1990 obtained from the State Engineer who is established the Public Water Rights responsible for administering water rights Advisory Committee to evaluate the need in the state (N.M. Stat. Ann. § 72-2-1). for statutory controls over water use and Exempted from the permit requirement are allocation (1990 N.H. Laws ch. 148). artificial water (private water) (see Reynolds v. City of Roswell, 99 N.M. 84, 654 P.2d 537 The Groundwater Protection Act (New (1982) and water from undeclared basins Hampshire Statutes § 485-C, et seq.) (N.M. Stat. Ann. §§ 72-12-4, -12-20)). Also regulates large water withdrawals. Large exempted are ponds under 10 acre-feet water withdrawals are defined as where the dam is having no more than 10- withdrawals of 57,600 gallons or more in feet high (State ex rel. State Engineer v. Lewis, any one-day period (N.H. Rev. Stat. Ann. §§ 121, 323, 910 P.2d 957 (N.M. App. 1995), cert. 485-C:13 and 485-C:21). denied (1996)). Lastly, vested rights with New Jersey priority dates prior to 1907 do not require a permit. However, they must have been for a New Jersey’s common law rule for continuous use and not a one-time percolating groundwater remains unclear. diversion (State of New Mexico ex rel. Early cases applied the American rule Martinez v. McDermett, 120 N.M. 327,901 P. (Meeker v. East Orange, 77 N.J.L. 623, 638 (E. 2d 745 (N.M. App. 1995)). & A. 1909)). However, some authorities interpret Meeker as adopting the Correlative Chapter 72 Rights rule (Woodsum v. Pemberton Twp., 172 Water Law N.J. Super. 489, 502, 504, 412 A.2d 1064 (Law Div. 1980), aff ’d on other grounds, 177 N.J. Article 12 Underground Waters Super. 639, 427 A.2d 615 (App. Div. 1981), § 72-12-1. Underground waters citing Hanks, Eva M. and John L. Hanks, declared to be public; applications The Law of Water in New Jersey: Groundwater, for use to state engineer; hearings 24 Rutgers L. Rev. 621, 649 (1970)). Correlative Rights protect all users, The water of underground streams, including transporters. When reviewing all channels, artesian basins, reservoirs cases, it appears as if New Jersey uses the or lakes, having reasonably Reasonable Use rule. ascertainable boundaries, are declared to be public waters and to

42 A Water Systems Council Report belong to the public and to be make an application to the state subject to appropriation for engineer on a form prescribed by the beneficial use. By reason of the state engineer for a livestock well varying amounts and time such permit. Upon filing of the water is used and the relatively application, the state engineer shall small amounts of water consumed issue a livestock well permit for the in the watering of livestock; in use of water for watering livestock irrigation of not to exceed one acre to the applicant, provided that as of noncommercial trees, lawn or part of an application for livestock garden; in household or other watering use on state or federal domestic use; and in prospecting, land, the applicant submits proof mining or construction of public that the applicant: works, highways and roads or A. is legally entitled to place drilling operations designed to livestock on the state or discover or develop the natural federal land where the water resources of the state, application for is to be used; and any such use shall be governed by the provisions of Sections 72-12-1.1 B. has been granted access to through 72-12-1.3 NMSA 1978. the drilling site and has permission to occupy the § 72-12-1.1. Underground waters; portion of the state or federal domestic use; permit land as is necessary to drill A person, firm or corporation and operate the well. desiring to use public underground waters described in this section for irrigation of not to exceed one acre Two important court cases were recently of noncommercial trees, lawn or decided in New Mexico. In Walker v. United garden or for household or other States, 142 N.M. 45, 162 P.3d 882 (2007), the domestic use shall make application New Mexico Supreme Court held that to the state engineer for a well on a water rights and rights to land were form to be prescribed by the state separate and distinct. The only time that an engineer. Upon the filing of each owner or purchaser of land may assume application describing the use that water rights go with the land is where applied for, the state engineer shall the water is used for irrigation. issue a permit to the applicant to use the underground waters applied for; In Bounds v. State ex rel. D’Antonio, 306 P.3d provided that permits for domestic 457 (N.M. 2013), the Supreme Court of New water use within municipalities Mexico ruled on a long-standing dispute shall be conditioned to require the over exempt wells in the state. The trial permittee to comply with all court had struck down a state law applicable municipal ordinances exempting domestic water wells from some enacted pursuant to Chapter 3, of the regulations applying to other Article 53 NMSA 1978. groundwater withdrawals in Bounds v. New Mexico, CV-2006-166, County of Grant, Sixth § 72-12-1.2. Underground public Judicial Circuit (New Mexico, July 10, 2008). waters; livestock well permits Bounds is a farmer who owns irrigation A person, firm or corporation water rights for 157.63 acres with an 1869 desiring to use public underground priority in the Mimbres Basin. Farm Bureau waters for watering livestock shall 43 A Water Systems Council Report also intervened in the case, “representing constitute an impermissible exception to the 14,000 farm and ranch families having an priority doctrine. Notably, the Court of interest in the case.” The Mimbres Basin has Appeals opined that prior appropriation is been closed since 1972 and the entire basin “but a broad principle” that gives the has been adjudicated. Bounds filed this legislature broad discretion in determining declaratory action to declare the exemption how to implement the doctrine. for domestic well applications in New Mexico Code § 72-12-1.1 unconstitutional. That decision was appealed to the Supreme New Mexico Code § 72-12-1.1 states that the Court of New Mexico. The Supreme Court Office of the State Engineer “shall” issue of New Mexico affirmed the decision of the domestic well permits and that domestic Court of Appeals, but was careful to well applications are exempt from the emphasize that prior appropriation is an notice and hearing requirements applicable important principle. The court also stressed to all other groundwater applications. the fact that the state legislature had broad New Mexico Constitution Art. XVI, §2 states: discretion in determining the legal parameters of exempt wells. Finally, the The unappropriated water of every court acknowledged that “exempt well” is a natural stream, perennial or misnomer. In fact, exempt wells are heavily torrential, within the state of New regulated. Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in New York accordance with the laws of the New York is a party to the Great Lakes state. Priority of appropriation shall Compact. See the section describing the give the better right. impact of the Great Lakes Compact on The trial court found that New Mexico Code § water rights. 72-12-1.1 lacks any due process New York case law adopts the Reasonable requirements to protect senior water rights Use rule (Forbell v. City of New York, 164 N.Y. from out of priority review of domestic well 522 (1900)). New case in 2014. In Forbell, the applications and that Bounds need not court affirmed an injunction ceasing suffer any impairment to attack the operation of Brooklyn’s pumping station constitutionality of the statute— “When the and wells. Brooklyn’s actions lowered the water is gone it will be too late.” Bounds, water table, injuring an adjacent farmer. page 2. New York statutes comprehensively Finding that the 1910 Constitutional regulate use of groundwater and surface Convention considered water rights, water (N.Y. Envtl. Conserv. §§ 15-0101, et including domestic use, but failed to adopt seq.). N.Y. Envtl. Conserv. § 15-0701 appears a hierarchy of appropriation by use, the to codify the Correlative Rights rule by court found that New Mexico Code § prohibiting use of groundwater that harms 72-12-1.1 is unconstitutional. The lack of others. However, the issue remains protection for senior appropriators amounts uncertain. Certain water uses do require a to a lack of due process according to the permit, including: 1) water for potable court. purposes (public supplies); 2) agricultural irrigation; 3) certain multi-purpose and On appeal, the Court of Appeals of New similar public projects; 4) supply of water Mexico reversed (Bounds v. State, 149 N.M. for use into any other state; 5) withdrawals 484, 252 P.3d 708 (2010)). That court found of 100,000 gallons or more per day; and 6) that the domestic well statute did not transportation of water by vessel (N.Y. violate the priority principle, nor did it 44 A Water Systems Council Report

Envtl. Conserv. Law §§ 15-1501 to 15-1529). undertaking and imposes risks of damage However, whether this permit requirement to persons and property within this state… extends to groundwater is unclear. The inclusion of a definition for “water well” in North Carolina N.Y. Envrtl. Conserv. Law § 15-1502 implies In a 1924 decision, Rouse v. City of Kinston, that groundwater is subject to the 188 N.C. 1, 123 S.E. 482 (N.C. 1924), the permitting requirement. Supreme Court of North Carolina adopted Groundwater withdrawals may be the American rule. In Rouse, a landowner restricted where aquifers are polluted, or in sued the city for damages caused by wells danger of pollution, or subject to depletion constructed by the city to obtain water for (6 N.Y.C.R.R. §§ 601, 602). In those areas, the sale. The court applied the American rule. New York Department of Conservation has “We think the American rule, adopted in imposed numerous moratoria on the most of the states where this question has construction of new wells (Beck, vol. 6, p. arisen, the ‘reasonable’ use of percolating 540-41). water, the correct rule.” A recent case suggests that the state claims In 1967, the North Carolina legislature ownership of groundwater under the public passed the Water Use Act, which regulates trust doctrine. In a contamination case surface and groundwater together (N.C. where the homeowners’ groundwater was Stat. § 143.215.11, et seq.). The statute contaminated, the state appellate court requires that, before groundwater use can states, “groundwater does not belong to the be regulated, a capacity use district must be owners of real property, but is a natural designated. The state presently recognizes resource entrusted to the state by and for its only one capacity use district. This district citizens” (Ivory v. Int'l Bus. Machines Corp., encompasses 15 counties in the central 116 A.D.3d 121, 130, 983 N.Y.S.2d 110, 117, coastal plain. Persons withdrawing more leave to appeal denied, 23 N.Y.3d 903, 11 N.E. than 10,000 gallons a day must register 3d 204 (2014)). The court cited Navigation (N.C. Stat. § 143.215.15(a)). At present, the Law § 170 for this proposition. That registration serves as a data collection provision, part of the law addressing oil system only. Certain interbasin transfers of spill prevention, control and compensation, groundwater may be regulated, however. states in part: § 143-215.12. Declaration of The legislature finds and declares that New purpose. York’s lands and waters constitute a unique It is hereby declared that the general and delicately balanced resource; that the welfare and public interest require protection and preservation of these lands that the water resources of the State and waters promotes the health, safety and be put to beneficial use to the fullest welfare of the people of this state; that the extent to which they are capable, tourists and recreation industry dependent subject to reasonable regulation in on clean waters and beaches is vital to the order to conserve these resources economy of this state; that the state is the and to provide and maintain trustee, for the benefit of its citizens, of all conditions which are conducive to natural resources within its jurisdiction; and the development and use of water that the storage and transfer of petroleum resources. between vessels, between facilities and vessels, and between facilities, whether onshore or offshore, is a hazardous

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North Dakota defined subterranean channels or are diffused percolating North Dakota follows the doctrine of Prior underground water; Appropriation for beneficial use regarding groundwater withdrawals (N.D. Century 3. All residual waters resulting from Code 61-01-01). When a landowner’s beneficial use, and all waters withdrawal harms other landowners artificially drained; and overlying the common supply who have 4. All waters, excluding privately applied the water to beneficial use, the owned waters, in areas determined court may award compensation for “the by the state engineer to be cost of making such repairs, alterations, or noncontributing drainage areas. A construction that will ensure the delivery to noncontributing drainage area is the surface owner prior to the any area that does not contribute diminishment” (N.D. Cent. Code § 61-04-32. natural flowing surface water to a See also, Volkmann v. City of Crosby, 120 natural stream or watercourse at N.W.2d 18 (N.D. 1963); Undlin v. City of average frequency more often than Surrey, 262 N.W.2d 742 (N.D. 1978)). The once in three years over the latest right to appropriate water is limited to the thirty-year period. quantity which can be beneficially used (N.D. Cent. Code § 61-04-01.2). A Ohio conditional water permit must be obtained from the State Engineer prior to making any Ohio is a party to the Great Lakes Compact. appropriations. Permits are not required for See the section describing the impact of the domestic, livestock, fish, wildlife, and Great Lakes Compact on water rights. recreation uses of less than 12.5 acre-feet In 1984 in Cline v. American Aggregates Corp., (N.D. Cent. Code § 61-04-02). 15 Ohio St. 3d 384 (Ohio 1984), the Ohio North Dakota Century Code Supreme Court employed the Restatement (Second) of Torts approach to groundwater 61-01-01 Waters of the state – Public law (Juliane Matthews, A Modern Approach waters. to Groundwater Allocation Disputes: Cline v. Am. Aggregates Corp.,7 J. Energy L. & Pol’y All waters within the limits of the 361 (1986)). In Cline, the Ohio Court state from the following sources of departed from the English rule and water supply belong to the public accepted the beneficial purpose standard of and are subject to appropriation for the Restatement (Second) of Torts. beneficial use and the right to the use of these waters for such use In 1990, Ohio statutorily enacted the must be acquired pursuant to Restatement rule concerning determination chapter 61-04: of the reasonableness of a use of water (http://ohiodnr.com/water/planing/ 1. Waters on the surface of the earth watsupas/ water_rights/tabid/4065/ excluding diffused surface waters Default.aspx (last visited June 27, 2009)). but including surface waters “Section 1521.17 ORC states that such a whether flowing in well defined determination depends on a consideration channels or flowing through lakes, of the interests of the person making the ponds, or marshes which constitute use, of any person harmed by the use, and integral parts of a stream system, or of society as a whole. It then lists nine waters in lakes; factors to be considered, which are the same 2. Waters under the surface of the as those contained in the Restatement of earth whether such waters flow in Torts” (Id.). 46 A Water Systems Council Report

Groundwater withdrawals exceeding agree with [the defendant] that plaintiffs 100,000 gallons per day must register with have no groundwater claim under the Ohio Department of Natural Resources, McNamara. An Ohio landowner has a with certain exceptions, mainly applying to property right in groundwater only to the public water suppliers. No one has ever extent he actually uses that water; he has no applied for a permit under this provision. property interest in that water simply because it resides beneath his land.” (Baker In McNamara v. City of Rittman, 107 Ohio St. v. Chevron U.S.A. Inc., 533 F. App'x 509, 521 243, 838 N.E.2d 640 (2005), decided on (6th Cir. 2013)). Baker involved a group of December 21, 2005, Ohio’s highest court homeowners claiming that the groundwater considered a question from the United beneath their property had been States Court of Appeals for the Sixth contaminated. Circuit. The case had been filed and litigated in the Oklahoma United States District Court for the Oklahoma traditionally followed the rule of Southern District of Ohio. That court Reasonable Use to regulate groundwater in granted judgment to the city over a the state (Canada v. City of Shawnee, 179 landowner who alleged that the city’s Okla. 53, 64 P.2d 694, 696-99 (1937); Bowles v. pumping of groundwater interfered with City of Enid, 245 P.2d 730 (Okla. 1952)). The landowner’s use of water beneath their 1972 Groundwater Law altered this property. standard. Instead, overlying landowners Since the case depended upon state law, the may be granted permits to withdraw a federal appellate court certified a question proportionate share of the maximum to the Ohio Supreme Court, asking, “Does annual yield “equal to the percentage of an Ohio homeowner have a property land overlying the fresh groundwater basin interest in so much of the groundwater or subbasin which the applicant owns or located beneath the landowner’s property leases and which is dedicated to the as is necessary to the use and enjoyment of application” (Okla. Stat. tit. 82, § 1020.9(B)). the owner’s home?” The Ohio Supreme Now, “the use or non-use by one landowner Court answered in the affirmative, holding neither decreases nor increases the that “Ohio landowners have a property proportionate share of another” (Oklahoma interest in the groundwater lying beneath Water Resources Bd. v. Texas County Irrig. & their land and that governmental Water Resources Ass’n, 711 P.2d 38, 41- 42 interference with that right can constitute a (Okla. 1984)). Landowners must obtain a taking.” Note that whether a “property permit from the Oklahoma Water Resources interest” exists or not is a technical, legal Board before making groundwater question. The right must be a “property withdrawals for other than domestic interest” to receive constitutional purposes (Okla. Stat. tit. 82, § 1 020.11.A.). protection. This case is significant as one of Exempt from this requirement are domestic the first, if not the first, state supreme court uses (Okla. Stat. tit. 82 §§ 1020.1, 1020.3). to confirm that groundwater rights are Domestic uses are defined to include subject to the protection of the United States household purposes, farm and domestic Constitution. animals up to the grazing capacity of the land, irrigation of not more than three acres A recent federal court opinion states that for the growing of gardens, orchards, and the property right enunciated in McNamara lawns, and “such other purposes specified exists only when the property owner uses by Board rules, for which de minimis the water, making it different from the amounts are used” (Okla. Stat. tit. 82, § “ownership in place” rule in Texas. “We 105.1(2)). The Oklahoma Water Resources 47 A Water Systems Council Report

Board has specified as “other purposes” subbasin. The provisions of this act “the use of water by non-household entities shall not apply to the taking, using for drinking water purposes, restroom use, or disposal of salt water associated and the watering of lawns provided that the with the exploration, production or amount used does not exceed three acre-feet recovery of oil and gas or to the per year” (OWRB Rule, tit. 785, § 20-1-2). taking, using or disposal of water trapped in producing mines. The Oklahoma Water Resources Board oversees groundwater permitting. “State Oklahoma Statutes groundwater is considered private property Title 82. Waters and Water Rights that belongs to the overlying surface owner, although it is subject to reasonable Chapter 11 Section 1020.14 – Prior regulation by the OWRB… As with stream Use of Groundwater. water, before actual use of the water for any purpose other than domestic, persons Nothing in this act shall be intending to use groundwater must submit construed to deprive any person of a permit application to the OWRB” (http:// any right to the use of groundwater www.owrb.ok.gov/ supply/watuse/ in such quantities and amounts as gwwateruse.php) (last visited June 27, were used or were entitled to be 2009). used prior to the enactment hereof. Any person having the right to place Thus, Oklahoma appears to use the groundwater to beneficial use prior Correlative Rights doctrine with respect to to the effective date of this act shall all uses except domestic uses. Domestic have the right to bring his use under uses are subject to a type of Reasonable Use the provisions of this act. rule. Determinations of prior rights to the use of groundwater made by the Oklahoma Statutes Board pursuant to Board rules and Title 82. Waters and Water Rights regulations are hereby validated. Chapter 11 Oregon Section 1020.2 – Declaration of Prior Appropriation governs groundwater Policy. use in Oregon. Under a statutory system, a permit is required before making any Section 1020.2 It is hereby declared withdrawals (Or. Rev. Stat. §§ 537.505 to . to be the public policy of this state, 796). Exceptions to the permit requirement in the interest of the agricultural include stock watering, domestic uses up to stability, domestic, municipal, 15,000 gallons per day, lawn watering up to industrial and other beneficial uses, half an acre, and small industrial or general economy, health and welfare commercial uses up to 5,000 gallons per day of the state and its citizens, to utilize (Or. Rev. Stat. § 537.545). Exempt uses are the groundwater resources of the also limited to the amount necessary for state, and for that purpose to beneficial use. The Water Resources provide reasonable regulations for Department may regulate exempted uses by the allocation for reasonable use using priority dates if necessary. In times of based on hydrologic surveys of fresh shortage, domestic purposes have first groundwater basins or subbasins to preference and agricultural purposes determine a restriction on the second preference over all other uses (Or. production, based upon the acres Rev. Stat. § 540.140). Pre-statute (prior to overlying the groundwater basin or 1909) rights may be protected (see Or. Rev. 48 A Water Systems Council Report

Stat. § 537.605). Groundwater is further Oregon, the appropriation doctrine has regulated within groundwater management been law since 1909 when passage of the areas. After the declaration of such an area, first unified water code introduced state new users must apply for a permit even for control over the right to use water” (http:// normally exempted uses (Or. Rev. Stat. § www.oregon.gov/OWRD/PUBS/ 537.545). No relevant case law was aquabook.shtml) (last visited June 27, 2009). discovered. Some uses of water are “exempt” and do not require water rights (Id.). For example, Groundwater single or group domestic purposes for no 537.525 Policy. more than 15,000 gallons per day are exempt (Id.). The Legislative Assembly recognizes, declares and finds that Pennsylvania the right to reasonable control of all Pennsylvania is a party to the Great Lakes water within this state from all Compact. See the section describing the sources of water supply belongs to impact of the Great Lakes Compact on the public, and that in order to water rights. insure the preservation of the public welfare, safety and health it is In 1940, in Rothrauff v. Sinking Spring Water necessary that: Co., 339 Pa. 129, 14 A.2d 87 (Pa. 1940), the Supreme Court of Pennsylvania rejected the (1) Provision be made for the English rule and adopted the Rule of final determination of Reasonableness: “While there is some relative rights to appropriate difference of opinion as to what should be groundwater everywhere regarded as reasonable use of such waters, within this state and of other the modern decisions are fairly harmonious matters with regard thereto in holding that a property may not through a system of concentrate such waters and convey them registration, permits and off his land if the springs or wells of another adjudication. are impaired… In the absence of precedent (2) Rights to appropriate in our own State we adopt this view as the groundwater and priority proper interpretation of the law.” The thereof be acknowledged Pennsylvania legislature has not attempted and protected, except when, to modify this rule by statute. under certain conditions, the Rhode Island public welfare, safety and health require otherwise. The Absolute Ownership doctrine is still utilized in Rhode Island (Linda A. Malone, (3) Beneficial use without The Necessary Interrelationship between Land waste, within the capacity of Use and Preservation of Groundwater available sources, be the Resources, 9 UCLA J. Envtl. L. & Pol’y 1 basis, measure and extent of (1990)). However, “[O]ne commentator has the right to appropriate suggested that it is ‘doubtful’ that Rhode groundwater. Island will continue to allow absolute (4) All claims to rights to ownership and noted that the Vermont appropriate groundwater be made a legislature in 1985 adopted the correlative matter of public record. rights rule in place of absolute ownership” (Id.). The Oregon Water Commission oversees the Water Resources Department. “In 49 A Water Systems Council Report

Gen.Laws 1956, § 46-13.1-2 discharges where such discharges are shown to have already occurred; § 46-13.1-2. Legislative ﬁndings (6) Existing and potential sources of groundwater shall be maintained and The general assembly hereby recognizes protected. Where existing quality is and declares that: inadequate to support certain uses, the

quality shall be upgraded, if feasible to (1) Water is vital to life and comprises an protect the present and potential uses of the invaluable natural resource which is not to resource; be abused by any segment of the state’s population or its economy. It is the policy of (7) The groundwaters of the state are to be this state to restore, enhance, and maintain protected for use as agricultural, industrial, the chemical, physical, and biological and potable water supplies, and other integrity of its waters, to protect public reasonable uses, and as a supplement to health, to safeguard fish and aquatic life surface waters for recreation, wildlife, fish and scenic and ecological values, and to and other aquatic life, agriculture, industry, enhance the domestic, municipal, and potable water supply; recreational, industrial, and other uses of water; (8) Discharges to groundwater which subsequently discharge into surface waters and which would cause a contravention of surface water quality or standards shall not (2) The groundwaters of this state are a be permitted. critical renewable resource which must be protected to insure the availability of safe (9) No degradation of the state’s and potable drinking water for present and groundwaters shall be permitted unless the future needs; state chooses to allow lower water quality as a result of the essential, desirable, and (3) It is a paramount policy of the state to justifiable economic, commercial, industrial, protect the purity of present and future or social development. drinking water supplies by protecting aquifers, recharge areas, and watersheds; South Carolina (4) It is the policy of the state to restore and South Carolina applies the Riparian maintain the quality of groundwater to a doctrine to surface waters. The rule is very quality consistent with its use for drinking similar to the Reasonable Use rule for supplies and other designated beneficial groundwater. However, there is no uses without treatment as feasible. All meaningful common law authority for groundwaters of the state shall be restored groundwater (J. Marshall Lawson, to the extent practicable to a quality Transboundary Groundwater Pollution: The consistent with this policy; Impact of Evolving Groundwater Use Laws on Salt Water Intrusion of the Floridian Aquifer (5) It is the policy of the state not to permit along the South Carolina-Georgia Border, 1 S.C. the introduction of pollutants into the Envtl. L.J. 85, 93 (2000)). groundwaters of the state in concentrations which are known to be toxic, carcinogenic, South Carolina has also adopted a mutagenic, or teratogenic. To the maximum permitting system for groundwater extent practical, efforts shall be made to withdrawals in excess of 100,000 GPD for require the removal of those pollutants from wells within “capacity use” areas (S.C. Code Ann. § 49-5-60(a) (Law Co-op. 2002)).

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South Carolina has now designated four the legislature for approval (S.D. Codified capacity use areas encompassing fifteen Laws Ann. § 46-5-20.1). “Domestic use is the counties (http://www.scdhec.gov/ highest use of water and takes precedence environment/WaterQuality/ over all appropriative uses” (http:// GroundUseReporting/Overview/). The denr.sd.gov/des/wr/wateruse.aspx). statute exempts withdrawals for non- Title 46 consumptive uses and withdrawals at a “single family residence or household for Water Rights noncommercial use” (S.C. Stat. § 49-5-10, et seq.). No exception exists for agricultural Chapter 1 – Definitions and withdrawals. General Provisions Chapter 5. Groundwater Use and 46-1-1. Use of water of state— Reporting Act Paramount interest of people—of the state have a paramount interest Section 49510. Short title. in the use of all the water of the state and that the state shall determine This chapter may be cited as the what water of the state, surface and Groundwater Use and Reporting Act. underground, can be converted to SECTION 49520. Legislative public use or controlled for public declaration of policy. protection. The General Assembly declares that 46-1-3. Water as property of people the general welfare and public —Appropriation of right to use. It is interest require that the hereby declared that all water groundwater resources of the State within the state is the property of be put to beneficial use to the fullest the people of the state, but the right extent to which they are capable, to the use of water may be acquired subject to reasonable regulation, in by appropriation as provided by order to conserve and protect these law. resources, prevent waste, and to Chapter 6 – Groundwater and provide and maintain conditions Wells which are conducive to the development and use of water 46-6-3. Appropriation of resources. groundwater authorized. Subject to vested rights and prior South Dakota appropriations, groundwaters of the South Dakota subjects percolating waters to state may be appropriated pursuant the same Prior Appropriation regime as to the procedures contained in surface waters and underground streams. chapter 46-2A. The state requires a permit before anyone Tennessee may make a groundwater withdrawal (see 1955 Water Law, S.D. Codified Laws Ann. § Tennessee courts presume that all 46). Domestic wells do not require a permit groundwater is percolating groundwater (Id.). The law provides for the recognition of (Nashville, C. & St. L. Ry. v. Rickert, Tenn. groundwater rights based upon the actual App. 446, 89 S.W.2d 889 (1935), cert. denied use of water prior to 1955 when the state’s (Tenn. Sup. Ct. 1936)). One must present water law was enacted. South Dakota’s existence of an underground stream by Water Management Board must present surface markings (Tennessee Electric Power water uses in excess of 10,000 acre-feet to Co. v. Van Dodson, 4 Tenn. App. 54, 58

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(1931)). The state allocates the right to use However, if the cap is exceeded, then the groundwater based on the Correlative Edwards Aquifer Authority may Rights rule (Nashville, C. & St. L. Ry. v. proportionally reduce existing users’ Rickert, Tenn. App. 446, 89 S.W.2d 889 withdrawals to no less than 2 acre-feet for (1935), cert. denied (Tenn. Sup. Ct. 1936)). each acre of land actually irrigated during (The court stated it was applying the the historical period. The Act exempts any Reasonable Use rule. However, the rule wells producing 25,000 gallons per day or applied more closely resembles the less from the permit requirements and the Correlative Rights rule.) cap limitation (Edwards Aquifer Act, Act of May 30, 1993, 73rd Leg., R.S., ch. 626, 1993 In Nashville C. & St. L. Ry. v. Rickert, a Tex. Gen. Laws 2350, as amended by, Act of railroad company sued a landowner to May 28, 1995, 74th Leg., R.S., ch. 361, 1995 prevent him from pumping water on his Tex. Gen. Laws 3280). property in such quantities as to interfere with the railroad’s supply. In 1935, while City of Del Rio v. Clayton Sam Colt Hamilton affirming the lower court’s finding in favor Trust, 269 S.W.3d 613, 2008 WL 508682 of the railroad, the appeals judge quoted (Tex.App.-San Antonio, 2008) involved the from the lower court decision. “[T]he sale of 15 acres from a 3,200-acre ranch to modern rule and the better rule is that the the City of Del Rio. The tract is surrounded rights of each owner being similar, and their south, north and east by the remainder of enjoyment dependent on the action of other the ranch, and by a highway on the west. landowners, their right must be correlative The deed reserved “all water rights and subject to the maxim that one must so associated with said tract.” Three years after use his own as not to injure another, so that purchasing the tract, the city developed a each landowner is restricted to a reasonable well on property for public water supply. exercise of his own rights and a reasonable The trust filed suit against city, seeking use of his own property, in view of the declaration that it owned the groundwater similar rights of others.” beneath the 15-acre tract it had conveyed to Texas city, and that city’s claim of ownership to those water rights should be rejected. City Texas still applies the English rule of filed counterclaim, seeking declaration that Absolute Dominion in its traditional form warranty deed did not leave landowner (Houston & T.C. Ry. V. East, 98 Tex. 146, 81 with any right, title, or interest in any S.W. 279 (1904); City of Sherman v. Public groundwater pumped to the surface by the Util. Comm’n, 643 S.W.2d 681 (Tex. 1983); city. The 83rd Judicial District Court, Val Fain v. Great Spring Waters of America, Inc. Verde County concluded that trust’s water (Ozarka), 975 S.W.2d 327 (Tex. No. 98-0247, rights reservation was valid and May 6, 1999) (upholding rule of capture and enforceable, and that trust owned leaving regulation of groundwater to groundwater rights beneath tract. City legislature). Groundwater regulation in appealed. The Court of Appeals held that Texas is limited to elected water the trust was entitled to sever groundwater conservation districts and the Edwards from surface estate by reservation when it Aquifer. Water districts hold the power to conveyed surface estate to city. The city was regulate wells pumping more than 10,000 not permitted to drill and pump gallons per day. In the Edwards Aquifer, a groundwater from beneath tract under rule cap of 450,000 acre-feet/year has been of capture. The court also found that trust’s established with a priority for existing reservation of all water rights did not users. If excess water is available, then violate State Constitution’s prohibition permits are made available for new users. against perpetuities.

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A pair of recent Texas cases show that April 29, 2016, the Supreme Court of Texas regulatory takings of water rights may decided not to hear the appeal in the Bragg occur more often than previously assumed. case, so the decision will stand. These cases impact the “ownership of . groundwater in Texas in important ways”. Utah Although the cases are binding only in Texas, the rulings may influence courts in Utah follows the doctrine of Prior other states, and garnered national Appropriation, governing groundwater and attention. surface water identically (Utah Code Ann. § 73-3-1; Wrathall v. Johnson, 86 Utah 50, 40 P. First, the Supreme Court of Texas, in 2d 755 (1935); Justesen v. Olsen, 86 Utah 158, Edwards Aquifer Authority v. Day, 369 S.W.3d 40 P.2d 755 (1935) (applying appropriation 814 (Sup. Ct. Texas 2012), found that land and permit systems to artesian basins)). ownership includes an interest in Permits are required for all withdrawals. “groundwater in place” that cannot be Groundwater rights established prior to taken for public use without just 1935 are preserved as “diligence compensation under the Texas Constitution. rights” (1955 Utah Laws ch. 160, § 73-3- 17). The court compared groundwater to oil and Domestic use, then agricultural use, has gas, and found no reason not to treat preference in times of scarcity (1955 Utah groundwater as similar to oil and gas. The Laws ch. 160, § 73-3-31). The state engineer court then returned the case to the trial has issued water management plans for court to gather sufficient facts to determine twelve areas where water is in short supply whether a regulatory taking had occurred. (Groundwater Law Sourcebook of the Western United States, p. 53). Within these plans, the About a year and a half after Day was state engineer may limit appropriations, set decided, the Texas Court of Appeals was maximum annual withdrawals, and close presented with a case where the trial court the area to all new appropriations (Id.). had found a regulatory taking, applying the Penn Central balancing test. In this case, a Utah Code – Title 73 – Water and pecan grower had applied for permits to Irrigation withdraw groundwater to irrigate his pecan trees. The Edwards Aquifer Authority 73-1-1. Waters declared property of denied one permit outright and granted a public. All waters in this state, permit allowing withdrawal of a portion of whether above or under the ground the water requested by the pecan grower. are hereby declared to be the The pecan grower filed a lawsuit, claiming a property of the public, subject to all regulatory taking. existing rights to the use thereof. In 2006, the Utah General Assembly The trial court found that a regulatory adopted a new Groundwater Management taking had occurred, and awarded Act. The act authorizes the State Engineer to damages. On appeal, the Court of Appeals determine the safe yield within each basin. of Texas affirmed the finding of a regulatory Once the safe yield has been determined, taking (Edwards Aquifer Authority v. Bragg, the State Engineer may regulate on priority 421 S.W.3d 118 (Tex. Ct. App. 2013). In where withdrawals may exceed safe yield. addition, the court ruled that when a regulatory taking has been found in this situation, damages are calculated by subtracting the value of the real estate before the permit denial from the value of the property after the permit denial. On 53 A Water Systems Council Report

Vermont Effective in 2008, Vermont became the latest state to adopt a statute declaring Vermont traditionally followed the groundwater as part of the public trust (10 Absolute Dominion rule (White River Chair V.S.A. § 1390). Co. v. Conn. River Power Co. of N.H., 105 Vt. 24, 162 A. 859 (1932); Drinkwine v. State, 274 Vermont Statutes A.2d 485 (Vt. 1970)). However, in 1985, Title Ten: Conservation and Vermont enacted 10 V.S.A. § 1410, Development abolishing the Absolute Dominion rule and creating a cause of action for persons Part 2. Soil and Water harmed by the withdrawal of groundwater Conservation; Flood Control by another. The provision provides an exception that insulates a withdrawer for Chapter 48. Groundwater agricultural or silvicultural activities so Protection long as the alteration of groundwater Subchapter 1. Policy; Definitions quality or character is not negligent, reckless or intentional (10 V.S.A. §1410(d)). § 1390. Policy This provision has not been applied in a The general assembly hereby finds context that has considered groundwater and declares that: rights. (1) the state should adhere to Vermont Statutes the policy for management Title Ten: Conservation and of groundwater of the state Development as set forth in section 1410 of this title; Chapter 37: Water Resources Management (2) in recognition that the groundwater of Vermont is a § 901. Water resources management precious, finite, and policy invaluable resource upon It is hereby declared to be the policy which there is an ever- of the state that the water resources increasing demand for of the state shall be protected, present, new, and competing regulated and, where necessary, uses; and in further controlled under authority of the recognition that an adequate state in the public interest and to supply of groundwater for promote the general welfare. domestic, farming, dairy processing, and industrial § 902. Definitions uses is essential to the health, safety, and welfare of the Wherever used or referred to in this people of Vermont, the chapter, unless a different meaning withdrawal of groundwater clearly appears from the context: of the state should be …(3) “Waters” means any regulated in a manner that and all rivers, streams, benefits the people of the brooks, creeks, lakes, ponds state; is compatible with or stored water, and long-range water resource groundwaters, excluding planning, proper municipal and farm water management, and use of the supplies… water resources of Vermont;

54 A Water Systems Council Report and is consistent with remedy injury to a Vermont’s policy of particularized interest managing groundwater as a related to water quantity public resource for the protected under this benefit of all Vermonters; subchapter. (3) it is the policy of the state Virginia that the state shall protect its In Clinchfield Coal Corp. v. Compton, 139 S.E. groundwater resources to 308 (Va. 1927), the Virginia Supreme Court maintain high-quality did not display a preference for any specific drinking water; groundwater doctrine. In Clinchfield, a (4) it is the policy of the state landowner sued a coal company for the that the groundwater destruction of a spring on plaintiff’s land. resources of the state shall be “In the instant case, the coal company was managed to minimize the making a legitimate use of its land for risks of groundwater quality mining purposes, even under the deterioration by regulating ‘reasonable use’ rule, and we are not called human activities that present upon to decide between the different risks to the use of theories, but if the question shall again groundwater in the vicinities come before this court we shall feel free to of such activities while consider it de novo.” balancing the state’s In 1994, the Circuit Court of New Kent groundwater policy with the County examined the issue and held that need to maintain and Virginia is an American rule jurisdiction promote a healthy and (Andrews and New Kent County Citizen prosperous agricultural Association v. Board of Supervisors in New community; and Kent County, No. CH93-77, in the Circuit (5) it is the policy of the state Court for the County of New Kent, (Aug. that the groundwater 31, 1994)). The case involved a challenge to resources of the state are a proposed well for use as a municipal held in trust for the public. water supply. The Court ruled that “…as The state shall manage its between the English rule and American rule groundwater resources in concerning offsite sale of groundwater, the accordance with the policy of American rule applies in Virginia. this section, the requirements Accordingly, the offsite sale of groundwater of subchapter 6 of this is unlawful if it damages existing chapter, and section 1392 of groundwater supplies in New Kent this title for the benefit of County” (Id., at 2). In this case, the litigants citizens who hold and share requested that the Court only rule on rights in such waters. The whether the American Rule/English Rule designation of the applied. Additionally, in 1999, the Circuit groundwater resources of the Court of Frederick County considered the state as a public trust issue (Costello v. Frederick County Sanitation resource shall not be Authority, 49 Va. Cir. 41, WL 231720 (1999)). construed to allow a new While not expressly endorsing either right of legal action by an doctrine, the judge hinted that Virginia individual other than the follows the American rule. state of Vermont, except to

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In The Historic Green Springs, Inc., et al. v. subsequently replaced by the Virginia Virginia Western Land Company, LLC, et al., Groundwater Management Act of 1992 (Va. Case No. 04-6960, Louisa County, Virginia Code Ann. § 62.1- 254 to 62.1-270 (Michie Circuit Court, plaintiffs, landowners within 1992)). “Under the Groundwater an historic district in Louisa County, sought Management Act of 1992, Virginia manages an injunction to stop the Louisa County groundwater through a program regulating Water Authority from operating three wells. the withdrawals in certain areas called The lawsuit alleged that the pumping from groundwater management areas. Those these wells would interfere with plaintiffs’ wishing to withdraw 300,000 gallons per groundwater. In addition, the landowners month or more must apply for and receive a asked the court to clarify groundwater groundwater withdrawal permit. Currently, rights in Virginia. Note that some zoning there are two groundwater management issues, not pertinent to groundwater in areas in the state: the Eastern Shore and general, were also litigated. The plaintiffs eastern Virginia” (http:// maintained that the American rule applies www.deq.virginia.gov/Portals/0/DEQ/ in Virginia. Water/GroundwaterPermitting/ gwma.pdf). The eastern Virginia Judge Timothy Sanner of the Circuit Court groundwater management area was of Louisa County, Virginia, made his ruling significantly expanded in 2014 (http:// from the bench on December 20, 2006 (The www.deq.virginia.gov/Portals/0/DEQ/ Historic Green Springs, Inc., et al. v. Virginia Water/GroundwaterPermitting/Expansion Western Land Company, LLC, et al., Case No. %20fact%20sheet%20GWPP%20Final 04-6960, Louisa County, Virginia Circuit %2012%2019%2013.pdf). In non- Court, Transcript of the Proceedings before groundwater management areas, common the Honorable Judge Timothy Sanner, law applies and withdrawal permits are not December 20, 2006 (on file with Water required. Systems Council)). The judge made two very significant rulings. First, as the Ohio Code of Virginia Supreme Court decided in McNamara v. City Title 62.1. of Rittman, 107 Ohio St. 243, 838 N.E.2d 640 (2006), the judge held that groundwater Waters of the State, Ports, and rights are property rights. As a property Harbors right, groundwater rights receive constitutional and other protections. If a Chapter 25. Groundwater landowner can show unlawful interference Management Act of 1992 with this right, the court may order that the § 62.1-254. Findings and purpose. offender cease the pumping activity. The General Assembly hereby Secondly, the judge found that Virginia determines and finds that, pursuant adheres to the American rule. This ruling to the Groundwater Act of 1973, the augments the other two trial court rulings continued, unrestricted usage of of the same vein. Although no certainty groundwater is contributing and exists until the Virginia Supreme Court will contribute to pollution and rules, a growing unanimity exists that the shortage of groundwater, thereby American rule will apply. jeopardizing the public welfare, Legislatively, in 1973, Virginia adopted the safety and health. It is the purpose Groundwater Management Act which of this Act to recognize and declare provided for state regulation of the critical that the right to reasonable control of all groundwater areas. This 1973 law was groundwater resources within this Commonwealth belongs to the public 56 A Water Systems Council Report

and that in order to conserve, stream, lake or reservoir, or other protect and beneficially utilize the body of surface water within the groundwater of this Commonwealth boundaries of this state, whatever and to ensure the public welfare, may be the geological formation or safety and health, provision for structure in which such water stands management and control of or flows, percolates or otherwise groundwater resources is essential. moves. There is a recognized (Italics added) distinction between natural groundwater and artificially stored Washington groundwater; Washington regulates groundwater subject West Virginia to appropriation for beneficial use (RCW § 90.44.040 et seq.). Before 1945, groundwater In 1927, West Virginia indicated its support was allocated under the rule of Reasonable for the American rule in Drummond v. White Use (Evans v. City of Seattle, 47 P.2d 984 Oak Fuel Co., 140 S.E. 57 (W.Va. 1927). In (Wash. 1935)). After 1945, the exclusive Drummond, the plaintiff landowner sued a method for obtaining groundwater rights coal mining company for damages to a well became through a permit system governed on the surface tract, which plaintiff claimed by the rule of Prior Appropriation (RCW § was drained by reason of the removal of 90.44.050). Exempted from the permit coal. “The rule limiting the right of requirement are stock water, domestic uses diversion is called the ‘reasonable use’ or including irrigation of lawns and ‘American’ rule. It is now supported by the noncommercial gardens less than one-half decided weight of authority and was acre, and industrial or single or group approved by this court in its opinion in domestic uses of less than 5,000 gallons per Pence v. Carney, 58 W.Va. 296, 52 S.E. 702, day (Id.). 706 (W.Va. 1905). That case does not seriously attempt to define the rule of RCW 90.44.040 ‘reasonable use,’ but says it has been held to Public groundwaters subject to apply to any purpose for which a appropriation. landowner ‘might legitimately use and enjoy his land’.” No statutory provisions Subject to existing rights, all natural supplement the common law rule in West groundwaters of the state as defined Virginia. in RCW 90.44.040, also all artificial groundwaters that have been In Ooten, et al. v. Massey Coal Services, Inc, et abandoned or forfeited, are hereby al., Civil Action No. 02-C-203 (Circuit Court declared to be public groundwaters of Mingo County, West Virginia 2004), the and to belong to the public and to be jury returned a verdict ordering a coal subject to appropriation for mining company to pay approximately 240 beneficial use under the terms of this people representing 100 households a total chapter and not otherwise. of approximately $1.7 million. The jury found that the mine’s operation had RCW 90.44.035 interfered with the wells of these Definitions. households, infringing upon the owners’ private water rights. This case is very For purposes of this chapter: important in that the jury enforced the homeowners’ right to have a well in the (3) “Groundwaters” means all wake of a powerful defendant’s attempts to waters that exist beneath the land ignore those rights. surface or beneath the bed of any

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Wisconsin public or private, within this state or its jurisdiction. Wisconsin is a party to the Great Lakes Compact. See the section describing the Wyoming impact of the Great Lakes Compact on Wyoming’s groundwater regulation follows water rights. the doctrine of Prior Appropriation (and Wisconsin follows the Restatement of Torts may be subject to regulation and correlation rule to govern groundwater appropriations with surface water rights if found to be (State v. Michels Pipeline Constr. Inc., 63 Wis. interconnected) (Wyo. Stat. §§ 41-3-901 to 2d 278, 217 N.W.2d 339 (Wis. 1974)). The -919). Water rights permits are necessary state requires permits for certain water uses, before making any appropriations. including: 1) diversion for stream-level Wyoming provides for the establishment of maintenance; 2) agriculture and irrigation; “control areas,” designated by the Board of and 3) for a “system or plant” which Control where: 1) the use of groundwater is consumptively withdraws an average of approaching the recharge rate; 2) more than 2 mgd gallons per day in any 30- groundwater levels are declining or have day period (Wis. Stat. §§ 30.18, 30.28, 30.292 declined excessively; 3) conflicts between to 30.298, 281.35). Only withdrawals of users are occurring or are foreseeable; 4) 100,000 gallons per day or more are waste is occurring; or 5) other conditions regulated. (Withdrawals from surface or exist that require regulation to protect the groundwater that average more than public interest (Wyo. Stat. § 41-3-912(a)). 2,000,000 gallons per day over a 30-day Water appropriation restrictions may be period are also regulated (Wis. Stat. § imposed in these areas. Small domestic 281.35)). The permitting agency may cancel (lawns and noncommercial gardens less a permit if the agency finds that it no longer than one acre and less than 25 gal./minute) serves the public interest, with review and stock users (less than 25 gal./minute) required every five years (Wis. Stat. §§ may take groundwater from under their 30.18(6m), 281.35(6)(a)(9), 281.35(6)(b)). land without regard to priorities (Wyo. Stat. Priority exists for municipalities for well § 41-3-907). withdrawals in excess of 100,000 gallons per Wyoming Statutes day (Wis. Stat. § 281.34). Chapter 3 Wisconsin Statutes Water Rights; Administration and Environmental Regulation Control Chapter 281.01. Water and Sewage Article 1 Subchapter I. Definitions Generally In this chapter, unless the context 41-3-101. Nature of water rights and requires otherwise: beneficial use. (18) “Waters of the state” includes A water right is a right to use the water of those portions of Lake Michigan and the state, when such use has been acquired Lake Superior within the boundaries by the beneficial application of water under of this state, and all lakes, bays, the laws of the state relating thereto, and in rivers, streams, springs, ponds, conformity with the rules and regulations wells, impounding reservoirs, dependent thereon. Beneficial use shall be marshes, watercourses, drainage the basis, the measure and limit of the right systems and other surface water or to use water at all times, not exceeding the groundwater, natural or artificial, 58 A Water Systems Council Report statutory limit except as provided by W.S. 41-4-317. Conclusions In addition to any beneficial use specified by law or So, who really “owns” the water? Property owners rule and regulation promulgated pursuant thereto, (or holders of water rights) come closest to the use of water for the purpose of extracting heat “owning” water by owning the right to use water. therefrom is considered a beneficial use subject to The states, contrary to some assertions, do not own prior rights. the water. Water being always the property of the state, rights Just as the state or local government may regulate to its use shall attach to the land for irrigation, or to land use, federal, state and local governments may such other purposes or object for which acquired in reasonably regulate the right to use water. accordance with the beneficial use made for which However, if these regulations go too far, a taking the right receives public recognition, under the law has occurred and the owner must be compensated. and the administration provided thereby. Water rights for the direct use of the natural unstored Disputes over water rights will undoubtedly flow of any stream cannot be detached from the increase as demands on the resource increase. lands, place or purpose for which they are Many governments will attempt to overstep their acquired, except as provided in W.S. 41-3-102 and bounds. Property owners and owners of water 41-3-103, pertaining to a change to preferred use, rights should educate themselves as to their rights and except as provided in W.S. 41-4-514. and consult legal counsel, if they feel they are being treated unfairly. V. The Federal Government With the exception of regulating pollution and water quality, Congress has generally left the allocation of groundwater to the states. The Supreme Court has also shied away from the issue (J.M. Marshall Lawson, Transboundary Groundwater Pollution: The Impact of Evolving Groundwater Use Laws on Salt Water Intrusion of the Floridian Aquifer along the South Carolina-Georgia Border, 1 S.C. Envtl. L.J. 85, 98 (2000)). In United States v. Willow River Power Co., the owner of a dam and hydroelectric plant on a navigable stream, sued the federal government under the Fifth Amendment for compensation for a reduction in the generating capacity of the plant that resulted from an authorized navigation improvement. Although some form of private property rights in water has been found to exist in all states, the Supreme Court has made clear these rights are not absolute: “Rights, property or otherwise, which are absolute against all the world are certainly rare, and water rights are not among them” (Id., citing, United States v. Willow River Power Co., 342 U.S. 499, 510 (1945)).

59 60 Water Systems Council 1101 30th Street N.W., Suite 500 Washington, DC 20007

Phone: 202-625-4387 Fax: 202-625-4363 www.watersystemscouncil.org

This publication was developed in part under Assistance Agreement No. 83580501 awarded by the U.S. Environmental Protection Agency. It has not been formally reviewed by the EPA. The views expressed in this document are solely those of the Rural Community Assistance Partnership. EPA does not endorse any products or commercial services mentioned in this publication.