Underground Water Right Laws

Water rights refer to the legal right to use water from a particular source. Water rights allow certain entities, like property owners or private companies, to use, sell, divert, or manage water. The laws governing water rights vary from state to state, and water permits are issued according to state laws.

The two types of water rights used in the US are riparian rights, which pertain to the property owner’s right to use water on the border of their property, and prior-appropriation water rights, as the state grants a party the right to use certain waters.

Water rights can dictate how surface water or groundwater from a particular source can be used. Although state water laws vary, surface waters like lakes, streams, and coastal waters are publicly owned and therefore open to the public unless there is a drought crisis. The term groundwater refers to water that is derived from an underground aquifer. In most water rights doctrines, water users are limited to a “reasonable use” of a water source, which means they cannot exhaust the source or prevent others from accessing it.

Groundwater vs. Surface Water: What’s the Difference?

Various types of water rights give owners jurisdiction over either surface water or groundwater. Find out more about the difference between surface water and groundwater below.

• Surface water: The term “surface water” refers to the water flowing on the Earth’s surface, such as oceans, lakes, rivers, streams, and other sources that are not underground. As determined by state law, several private surface water rights are subject to riparian, hybrid, or appropriative clauses.
• Groundwater: As the name suggests, groundwater is water that comes from an underground source and can be used for irrigation, agriculture, and domestic purposes. Generally, groundwater is privately owned, though public rights are typically appropriated through an allocation system, according to which water is pumped to various destinations based on acreage.

How Are Underground Water Rights Determined?

Your water rights may vary depending on which state and doctrine your state follows. Eastern states adhere to the riparian doctrine, which states that landowners have rights to water that touches their property. Most western states adhere to the prior appropriation doctrine, which allows permit holders to divert water for approved, beneficial purposes.

The water regulations of California, Oklahoma, and Texas are hybrids of prior appropriation doctrine and riparian doctrine, permitting permit-holders to divert water from a source, except in the event of a water shortage. The Constitution prohibits the state or federal government from implementing any laws or restrictions that might limit a property owner’s access to or use of their water source.

Water percolating through the soil is often sought by the owner of the adjacent property for personal or commercial use. To resolve disputes over underground water use, the legal system has developed a number of rules. Below are the general rules for underground water, depending on the state or jurisdiction:

• Absolute Ownership Rule: Diffuse underground water is owned by the surface owner. Surface owners may not complain about the activities of other surface owners in the common basin, except in cases of malicious use. This rule usually applies in areas with abundant water supply.
• Reasonable Use Rule: Arid states impose a reasonable use standard on the use of underground water by surface owners. When assessing the reasonableness of particular use, it is important to know whether the water will recharge the aquifer.
• Correlative Rights Rule: In California, all surface owners are treated as having equal rights to the water, and a court may apportion it among them.
• Appropriation: Many western states now apply their appropriation systems to underground water.

Various Types of Water Rights

The two main types of water rights are riparian and prior appropriation. Other water rights, however, are available in some states while not in others because water rights vary considerably according to location. There are a variety of water rights in the United States, including the following.

1. Riparian water rights: Landowners are allowed to use watercourses that touch their land under the riparian doctrine. Usually, surface water rights refer to bodies of water. Property owners are allowed to use their water for domestic purposes, as long as it does not obstruct the natural flow of water for other riparian property owners.
2. Non-riparian water rights: Landowners with non-riparian rights have non-exclusive access to the water adjacent to their property. In cities, towns, or municipalities with limited waterfront access, this can be a frequent occurrence because exclusive use of the water can severely restrict access by others. When a landowner has access to a body of water or a community pier on their property, they are considered non-riparian.
3. Prior appropriation: According to the doctrine of prior appropriation, only those with a permit can divert water from a specific source. The holder of the oldest permit has priority access to water in the event of a water shortage. According to appropriative water rights, permit holders can sell their water rights separately from their land in some states. In contrast to riparian rights, however, rights holders may eventually lose access as a result of non-use.
4. Hybrid water rights: A hybrid water right refers to a combination of riparian rights and prior appropriation rights. In states that experience water shortages, like California, Oklahoma, and Texas, this doctrine is generally followed.
5. Absolute dominion: A landowner with absolute dominion has unrestricted access to a groundwater source.
6. Correlative rights: Some states also apply the Correlative Rights doctrine to groundwater rights, which states that landowners who share a source of water are only entitled to a reasonable share of the water, not all of it.
7. Community water rights: The community water right allows users who live close to a water source priority access to water over water appropriators.
8. Littoral rights: A littoral right is an ownership interest in navigable waters such as lakes, seas, and oceans that permits access to the water supply. Following the sale of a property, the new owner receives the rights to the land.
9. Navigable servitude: Navigable servitude is the federal government’s ability to protect navigable waterways for commerce, such as freight ships. Boat owners who own luxury vessels or other types of recreational vessels may also benefit from these rights.
10. Overlying rights: When it comes to groundwater regulation, states such as California follow the doctrine of Correlative Rights, which allows property owners to withdraw water from underneath their property. The appropriator may transport water outside of a basin, but the overlying rights holder gets priority.
11. Public trust: According to the public trust doctrine, the government owns a water source that is managed for public benefit. Waters used for recreational purposes such as swimming, boating, or preserving nature are included.
12. Right to clean water: Water is essential to human life for drinking, sanitation, hygiene, and agriculture. As high water quality is essential for survival, the government is responsible for protecting public downstream waters from contaminants, both in riparian and appropriative situations.

Should I Contact an Attorney for My Water Use Dispute?

If you are experiencing a dispute over an underground water supply, you may find the advice of a real estate attorney to be extremely helpful. Due to the complexity of this area of law, an experienced attorney can assist you in finding the best possible solution to your legal issue.