Who Owns Your Water?
A Crash Course in United States Surface and Groundwater Rights
“Who owns the water?” is not a question you may have asked yourself. However, this is not a new question for many, and there is some legal framework, however arbitrary it may be, to address it. Usage and misusage of water upstream can have lasting effects on areas downstream, and as you may imagine, the issues over water rights and ownership in the United States can be extremely contentious. With the effects of climate change continuing, so too will the issues with our water. That said, now might be a good time to brush up on exactly who owns the water around us.
Surface Waters
Surface waters can be traditionally classified in either of two legal doctrines, according to an NPR News story from All Things Considered in 2013. The Riparian Doctrine, colloquially known as “reasonable rights,” applies to the Eastern part of the United States. West of the Mississippi is governed by the Prior Appropriation Doctrine. Bill Ganong, a water rights attorney, explains in that report that water rights are a right of use, as opposed to a right of ownership.
Cornell Law School’s Legal Information Institute (LII) explains the rights of the Riparian Doctrine applying to people who own land bordering a body of water being limited to reasonable use of said water, so long as it does not affect someone else’s rights to the same waters. The rights of Prior Appropriation are defined by LII as giving priority to whatever individual first uses the water for beneficial purposes.
Groundwaters
A report, updated as recently as 2016, was compiled by the Water Systems Council (WSC) detailing groundwater laws and court cases that have set up the legal precedent for groundwater rights on a state-by-state basis. As such, there are five general “rules” for groundwater rights that states have adopted.
The common laws are as follows:
- Absolute Dominion (Also referred to as Absolute Ownership, or the English rule.)
- Reasonable Use (Also referred to as the American rule, or Rule of Reasonableness.)
- Correlative Rights doctrine
- Restatement (Second) of Torts (Also referred to as the Beneficial Purpose doctrine.)
- Prior Appropriation doctrine (Same principle as applied to surface waters.)
Absolute Dominion grants the landowner the right to divert, or excessively pump an aquifer to the detriment of any neighboring entities; 11 US states have shown preference to this law, though many have a clause preventing malicious pumping (Page 4).
Reasonable Use is an adaptation of Absolute Dominion that limits the landowner’s use to reasonable benefit with respect to the property overlying the groundwater. So long as the water is used on the land over the groundwater in question, and is not wasteful, the landowner is granted the rights to an unlimited amount of water, even to the detriment of neighboring entities; 17 states have shown preference to this law (Page 4).
Correlative Rights is similar to Reasonable Use. The key difference being that off-site usage of pumped water is not prohibited, and proportionality is applied to the equation. The Correlative Rights doctrine prevents landowners from excessive use of groundwater, allowing for a somewhat equitable distribution of rights to the use of the water with others overlying the aquifer; 5 states have a preference for this (Page 5).
Restatement of Torts is essentially a combination of Absolute Dominion and Reasonable Use. A landowner is able to use underlying waters for beneficial purposes, so long as this use does not cause unreasonable harm to a neighbor, or the landowner pumps more than their reasonable share of water, or the landowner’s pumping directly affects the flow of water from the region and causes unreasonable harm to others entitled to that region’s waters; only 2 states show preference to this (Page 6).
Prior Appropriation, as previously discussed when speaking about surface waters, grants rights to use on a first-come-first-serve basis, though it should be noted that, at least with groundwater, many states have added a permit process to this; 13 states have shown preference to Prior Appropriation (Page 6).
What Does This All Mean?
The United States does not have equal access to fresh water across all its lands. We’ve all heard about what happened in Flint, MI. We’ve heard about agricultural waste causing toxic algal blooms across the watersheds of Florida. These aren’t isolated incidents like a containment failure, as is currently the case in Northern Florida. They are examples of deliberately worst practices, leaving the problems left to those downstream of the point source of the pollution.
The resulting cascade of events that can happen from pollution in waterways and groundwater systems are broad, and tend to have further implications than those that are obvious at first. Algal blooms from agricultural waste, for example, can not only be harmful to various wildlife and humans, but they can actually produce more greenhouse gasses, contributing more to the climate crisis. Over-pumping, as well as changes in precipitation patterns due to climate change and rising temperatures, are likely to cause further tensions in the near future.
This is not unique to the United States, of course. We live in an ever-smaller world, where ecosystems and societies interact and share resources in very intricate ways. We need to consider that ownership and rights to water, one of the most important components to life, are greatly inequitable currently. If we are to move forward collectively, we need to be looking at the implications of our actions as communities, consumers, nations and states. Are we going to be more concerned with who owns the water? Or are we going to be more concerned about how we all treat the water we all share?
About the author:
