Regulated Rivers - Hydro-Environmental Analysis: Freshwater Environments - page 74

• “property of the public” (Colorado)

• “property of the state for the use by its people” (Montana)

• “are reserved to the people for the common good” (Alaska)

• “held in trust for the public” (Texas)

3.6.2.2 Groundwater Law
3.6.2.2.1 Groundwater Doctrines
There are multiple standards or systems of water rights on which individual state groundwater laws
are based. Some of the systems of water rights, as modiied from Bowman (1991) and the Water
Systems Council's (WSC) “Who Owns the Water” (www.watersystemscouncil.org) are:

• The Absolute Ownership Rule: This rule is based on English common law (Marvin and

Little 2010) “speciically the doctrine of ad coelum, which says that a property owner
is vested with property rights in all of the sky above his property up to the heavens and
everything beneath his property to the center of the earth.” This rule permits a landowner
to intercept groundwater that would otherwise have been available to a neighboring water
user and even to monopolize the yield of an aquifer without incurring liability. This is also,
in some cases, somewhat modiied and referred to as the “rule of capture” or the law of
the biggest pump, which allows the legal pumping of whatever groundwater is available
regardless of the impact that such pumping may have on neighboring users.

• The Reasonable Use Rule: This rule limits a landowner's use of water to those uses that

have a reasonable relationship to the use of the overlying land. The rule is essentially the
rule of absolute ownership with exceptions for wasteful and off-site use.

• Correlative Use Rule: This rule maintains that the authority to allocate water is held by

the courts. The owners of overlying land and the nonowners or transporters have coequal
or correlative rights in the reasonable and beneicial use of groundwater. A major fea-
ture of this doctrine is the concept that adjoining lands can be served by a single aquifer.
Therefore, the judicial power to allocate water permits protects both the public's interest
and the interests of private users.

• American Law Institute (ALI) Restatement of Torts Rule: The ALI redeined the rule of

reasonable use, resulting in this doctrine, which holds that a landowner who uses ground-
water for a beneicial purpose is not subject to liability for interference if certain conditions
are met. The water withdrawal cannot cause unreasonable harm to a neighbor by lower-
ing the water table or reducing the artesian pressure, it cannot exceed a reasonable share
of the total store of groundwater, and it cannot create a direct and substantial effect on a
watercourse or lake.

• The Prior Appropriation Rule: This rule maintains that the irst landowner to beneicially

use or divert water from a water source is granted priority of right. The amount of ground-
water this priority, or senior, appropriator may withdraw can be limited based on reason-
ableness and beneicial purposes. Some states have replaced or supplemented the Prior
Appropriation Doctrine with a permit system.

3.6.2.2.2 Tragedy of the Commons
One of the issues associated with groundwater can be described by the “tragedy of the commons”:

Freedom in the commons brings ruin to all, since every person is compelled to increase his/her indi-
vidual beneit without limit. (Hardin 1968)

“Groundwater depletion is a logical consequence of a commons (a natural resource used jointly
by many stakeholders) exploited in the absence of regulation or sustainable practices. As with any