Land Watermark

Watermark: License to Drill

Dec 31, 2015 Michael Nunziata
by Michael Nunziata
If groundwater has a poster boy, he’s surely James Bond. Agent 007 appreciates the importance of our most valuable resource, and he’s already shed some skin to save it. A few films back, Bond parachuted with a woman through a hole in a mountainside, crash-landing safely in an underground cave strewn with boulders. Fortunately Bond can see in the dark, and he realized at once that they’d fallen into a sinkhole, the bed of a subterranean river sucked dry by a villainous pump. Groundwater was the ultimate prize; the game was up and the bad guys doomed.
Groundwater comes from underground water-bearing formations called aquifers, which provide water to roughly half of all U.S. residents. (Surface waters such as lakes, rivers and streams make up the other half.) Most rural households rely on groundwater, but some aquifers also feed major urban centers, such as the great Magothy aquifer that waters nearly three-quarters of Long Island’s residents. Unlike Bond’s sub-surface river, most groundwater collects in the tiny spaces between sand and rock, as if you poured water into a bowlful of gravel. A groundwater well is essentially a straw pushed down into the saturated gravel in the bowl. A well runs dry when the water level in the gravel drops below the bottom of the straw. The remedy is to replenish the water in the bowl, or else push the straw down deeper.
We know a fair bit about groundwater aquifers: they can lie close to the surface or deep below it; they may be trapped, under pressure beneath an iron layer of rock or merely sunk in dirt and sand. An aquifer’s ability to replenish itself of the water we take depends on its location and physical quirks—and always the weather. Some aquifers may fill rather quickly while others need decades or longer.
We know that not all groundwater is safe to drink because poor soils or pollutants might add flavor. We know that aquifers are a living part of the planet’s hydrological cycle, the holy freshwater ocean that pirouettes between earth and sky. And a marvelous NASA satellite named GRACE tells us the change in the level of an aquifer every time she sails over it.
But that’s about all we know for certain, and not even GRACE can say how much water a particular aquifer holds or what its actual shape and size might be. No one can tell us, for the simple reason that we can’t see underground.
Five principal common law doctrines of groundwater allocation guide the fifty states. (Common law means the rules derived from judicial decisions, not those from statutes or regulations.) Each doctrine answers four questions: how much water can an owner take, and for what purpose? Will the water be used on the property or off, and must an owner consider the effect on a neighbor’s well?
Like Bond, the most dramatic of the doctrines is British. The English rule says that owners can take all the water they like and may use it for any purpose, even to waste. Owners can use the water anywhere, and they are not responsible for the well of their neighbor, who is always free to dig a deeper one. Some states still use the English rule. The American rule also allows an owner to draw any amount, but requires that the use be a reasonable one and that the water remains on the property. Most eastern states have adopted the American rule.
The doctrines of Correlative Rights and Restatement both balance the amount of water among all the neighborhood wells. The water must be put to good use, whether on or off the property. The Restatement, which is the most restrictive of all the doctrines, is the least popular among states. The fifth doctrine is called Prior Appropriation; it awards the same annual amount of water to the same persons who stand in front of a long line. The state not the proprietor determines the safe amount of water to take from an aquifer. This is also the surface waters rule of choice in the arid western states.
The laws and regulations for New York groundwater are concerned mainly with limiting pollution in our most important aquifers. Other rules set out programs to rehabilitate stressed aquifers. Aquifers are classed in importance not by their size but by how many New Yorkers depend upon them. Anyone wishing to extract vast amounts of groundwater must apply for a permit. Everyone who digs a well needs a license to drill.
We’re fortunate to live in a region so abundantly blessed with water. Perhaps we’re just as lucky to have so few groundwater laws rather than a tangle of rules and regulations. As our groundwater knowledge and needs increase, we have the rare chance to craft good practices to ensure a fruitful supply.
Michael Nunziata practices water law in New York state. mnunz@nyfwlaw.com.