Water Rights: Drawing Water from Underground
An owner has property rights to capture water on her land for use. Most underground water forms reservoirs in permeable sand, rock, and such. These underground reservoirs are called aquifers, and the permeating water may be called percolating water. Landowners may draw this water from underground through artificial wells, or the water may emerge from natural springs.
As with water in streams and lakes, one person’s drawing water from underground may diminish the water available to other landowners. Drawing water from underground also may cause the surface of other people’s land to subside. So the law has rules about the extent of individual property rights to draw water from underground.
Different states apply different rules and may apply different rules in different circumstances. The possible rules include the following:
Riparian rules: Sometimes underground water flows in a defined stream just like on the surface. Generally, courts apply the same rules that apply to surface streams if a water user proves that a particular source of underground water is a stream.
English or common law rule: The traditional rule about ownership of underground water is that anyone can drill wells on the surface of her land and take as much water as she wants to use. However, if she takes water maliciously to injure others, she has exceeded her property right and is liable for damages.
Likewise, if she uses water wastefully, like simply letting it pour out on the earth for no reason, she has exceeded her property right and is liable for injury to others. Most states used to apply the English rule but have abandoned it in favor of other rules.
American or reasonable use rule: Most states follow the American or reasonable use rule. Even though it’s called the reasonable use rule, it isn’t a balancing test like other reasonableness rules. The rule distinguishes between water used on the land from which it’s drawn and water transported elsewhere:
Onsite use: If water is used on the land from which it’s drawn, the reasonable use rule is essentially the same as the English rule. Any such use is by definition reasonable, regardless of the type of use or the injury to other water users. The only exception, as with the English rule, is that the user is liable for malicious or wasteful uses of water.
Offsite use: If water is drawn out and then transported elsewhere, the rule is different. Such uses are generally held to be unreasonable if they injure other owners of land overlying the aquifer. In other words, using water offsite generally means one is liable to other owners of overlying lands, regardless of the character of the use or the extent of the injury.
Correlative rights: The correlative rights rule is more like the reasonable use rule for surface streams and other reasonable use rules. Under this rule, the owner of the surface is liable for harm that results from taking more than her share of the aquifer.
Owners thus have an equal right to draw water from underground, and when there isn’t enough water to go around, a court may allocate shares of water among the users. As with the reasonable use rule, a surface owner doesn’t have the right to take water from underground and transport it elsewhere if doing so injures others.
Restatement rule: Some courts follow the rule described by the Restatement (Second) of Torts § 858. The Restatement rule says that a landowner who draws water from under her surface is liable for resulting injury to others only if she unreasonably causes harm or exceeds her reasonable share of the water supply. Reasonableness is determined considering the same factors as in the reasonable use rule for surface streams.
Prior appropriation: Most states with prior appropriation systems for streams and lakes apply the same system to underground water. So a person who applies underground water to a beneficial use would generally prevail in a conflict with a later user from the same aquifer.