Greener Guidance: Groundwater Regulations

Note: This is the eighth edition of NACCHO’s Greener Guidance environmental health advice column. See past columns here. Submit a question here.

March 2019

Dear Greener Guidance,

In our community in Ohio there is currently a concern regarding a groundwater development project and the potential depletion of the aquifer that serves the community. We are looking for regulations or laws that states may have regarding transfer of groundwater outside of an aquifer or limiting withdrawal.

– Guardian of the Groundwater

Dear Guardian,

The National Agricultural Law Center’s water law overview webpage summarizes the different types of groundwater regulations currently in use across the country:

Absolute Dominion Rule
Under the Absolute Dominion Rule, also called the “Absolute Ownership Rule” or the “English Rule,” a landowner may use as much ground water as possible. The rule does not take into account impacts on neighboring users, and as a result, one owner could monopolize the entire aquifer without incurring liability. This doctrine gave the incentive to pump as much water as possible, without fear of incurring penalties from a neighboring user. Most states have rejected this doctrine, because malicious withdrawals of water could not be enjoined. The states that do continue to follow this doctrine allow for remedies for willful injury. States following this doctrine are Connecticut, Georgia, Indiana, Louisiana, Maine, Minnesota, Massachusetts, Mississippi, Rhode Island, Texas, and Vermont.

Correlative Rights Doctrine
The Correlative Rights Doctrine distributes water on an equitable basis among landowners and allows off-tract uses, although these uses are subordinate to on-tract uses. Like the Absolute Dominion Rule, Correlative Rights determine rights in groundwater based on ownership of land. The difference is that landowners overlying the same aquifer are limited to a reasonable share of the aquifer’s total supply, and there is not an absolute right to groundwater or an unlimited right to pump.

The doctrine was first recognized in California in Katz v. Walkinshaw, 74 P. 766 (Cal. 1903). The decision places the authority to allocate groundwater in the court’s hands. The court held that in times of shortages an overlying owner must limit withdrawals to a “fair and just proportion” of the underlying supply. In fights between two users, whom are both exporting the water, the court would use the doctrine of prior appropriation. Finally, in disputes between an overlying landowner and an exporter, the overlying landowner receives a reasonable share of the water, even if the overlying owner is junior to the exporter. The states applying this doctrine include: California, Minnesota, Iowa, Arkansas, Vermont, and Oklahoma. Nebraska follows a combination of this doctrine and the Reasonable Use doctrine.

Prior Appropriation
Many western states have adopted a prior appropriation doctrine. Similar to the prior appropriative system for surface water, the first landowner to beneficially use or divert water from a groundwater source is given a priority over later users. The right, similar to the surface water system, is limited to the amount that is put to a beneficial use. Today many states have replaced this doctrine with a permit system, similar to the surface water permit system. This is the doctrine applied in Alaska, Colorado, Idaho, Kansas, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming.

Reasonable Use Rule
Some states have adopted the doctrine of reasonable use or the American rule, which requires the water to be put to a reasonable use on the overlying tract of land and does not permit water to be taken to another tract. Reasonable use has been construed broadly, and almost any use is considered reasonable as long as the water is used on the overlying land. The rule is considered a modification of the Absolute Dominion Rule with exceptions for wasteful uses and off-tract uses. This system is used in Alabama, Arizona, Delaware, Illinois, Kentucky, Maryland, Michigan, Missouri, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Pennsylvania, Virginia, and West Virginia. Other states have adopted the Reasonable Use Rule in conjunction with another groundwater rule. Florida has abolished all common law groundwater rights for a permit system, but uses the Reasonable Use doctrine in granting permits. Wyoming uses the Reasonable Use doctrine along with the Prior Appropriative system for groundwater. Finally, Nebraska uses Reasonable Use along with the Correlative Rights Doctrine.

The Restatement (Second) of Torts Rule
Finally, Wisconsin and Ohio have adopted the Restatement (Second) of Torts approach, which utilizes a variety of factors to determine if a use of water is appropriate. The Restatement’s rule is seen as a merger of the Absolute Dominion Rule and the Reasonable Use rule. Section 858 of the Restatement (Second) of Torts states:

Liability for Use of Groundwater

(1) A proprietor of land or his grantee who withdraws groundwater from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless (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.

The Ohio Department of Natural Resources oversees water diversions and regulations within your state, according to Peggy Kirk Hall, a partner with the National Agricultural Law Center at The Ohio State University. More information on Ohio’s diversion and withdrawal regulations is available here.

Ms. Hall also pointed us to two Ohio laws addressing groundwater withdrawals:

  • O.R.C. 1521.16: Registering facilities capable of withdrawing more than 100,000 gallons a day – rules for ground water stress areas; and
  • O.R.C. 1521.17: Determination of reasonableness of use of water.

An informational brief on “Ohio Law Governing Ground Water Ownership and Allocation” from the Ohio Legislative Service Commission explains these laws in greater detail.

While water regulation happens primarily at the state level, the Congressional Research Service’s report on the federal role in groundwater supply explains how federal agencies support state and local decisionmakers:

Although the states have assumed primary responsibility for groundwater management, several federal agencies monitor, forecast, and assess groundwater conditions in the United States. One agency, the U.S. Geological Survey (USGS), within the Department of the Interior (DOI), is a science agency with no regulatory or management responsibilities for water resources. For decades, USGS has monitored and reported groundwater conditions across the country; developed groundwater models and software tools for characterizing aquifers; and provided long and short-term forecasts of changing groundwater conditions as part of local and regional groundwater studies. The information is used to support federal, state, and local decisionmakers, and it is often conducted in collaboration with federal, state, and local partners. For example, USGS makes data from its distributed water database available to stakeholders. The database is a locally managed network of stations that monitor surface-water flow, groundwater levels, and water quality across the nation. The database includes long- and short-term records from more than 850,000 groundwater measurement sites.

The USGS Groundwater Watch database referenced in the excerpt above, which may be of use, is available at https://groundwaterwatch.usgs.gov/.

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