Unit 16

Water Law

ARE 306

I. Types of Water
A. Natural surface waters
B. Diffused surface waters
C. Underground streams
D. Percolating groundwater
E. Springs
F. Water in artificial channels and ponds
II. Natural Surface Waters
The rights which owners and occupants of land adjoining a watercourse have to
use that water are called riparian rights. The humid Eastern states have traditionally
followed the riparian doctrine of water rights. Riparian rights attach to both surface and
subterranean watercourses and to other definite, natural sources of water supply on the
surface of the earth. The nature of these rights is determined using the natural flow
theory or the reasonable use theory. Under the natural flow theory, each riparian owner
has a right to have the water of the stream remain substantially in its natural state, free
from any unreasonable diminution in quantity and pollution of quality. Under the
reasonable use theory, each riparian owner has the right to make the maximum
reasonable use of the water so long as it does not interfere with use by others. The
riparian owner may be allowed to take the whole flow of the stream, if needed for
domestic, or natural, uses, leaving none for riparian owners downstream. North Carolina
follows the reasonable use theory.
Natural uses are those arising from the necessities of life, such as household use,
drinking, bathing, irrigating small gardens or watering domestic animals. The riparian
owner may not take all of the water to the exclusion of the other downstream owners for
artificial uses, which are those uses that are not for domestic use. Artificial uses would
include commercial stock watering, irrigation, and recreational use, such as hunting,
fishing, and swimming. The riparian landowner who raises stock on a commercial scale
cannot exhaust the stream flow unless other riparian owners domestic needs have been
met. The right to irrigate applies only to the excess water available after domestic
purposes and watering domestic animals are supplied. Riparian owners have the right to
hunt, fish and swim in adjoining watercourses.
The arid Western states have adopted the doctrine of prior appropriation. Under
this theory, the first owner to divert water can use it all. The water may be used
anywhere as long as the use is beneficial and reasonable. The earliest appropriation of
water from a particular watercourse has a prior exclusive right to use the water
appropriated over later appropriators (first in time, first in right).

III. Percolating Groundwater

Water found below the surface that is not in a clearly defined underground
watercourse is called percolating groundwater. States have varying options regarding the
right to use this water: (1) prior appropriation (discussed above); (2) absolute ownership
(the owner of overlying lands is the absolute owner of all percolating waters thereunder;
owners may withdraw as much as they desire without regard to reasonableness or the
effect on others); (3) rule of reasonable use (water use by a landowner is limited to the
amount necessary for some reasonable beneficial purpose in connection with his land;
this is the rule adopted in North Carolina); (4) correlative right rule (when there is
insufficient groundwater from a common source to meet all the needs for use on
overlying land, the supply is divided among competing users in proportion to the
ownership of the overlying land); and (5) statutory modifications (based on the
Restatement (2nd) of Torts), and other state law.
IV. Boundaries
Navigable water is water that is suitable for commercial navigation (the
transportation of goods), and non-navigable water is not. Title to land under navigable
streams or natural lakes is held by the state as public trust land. The state may lease but
never sell public trust land. Title to land under non-navigable water is held by the owner
of the abutting land and extends to the center of the main channel of the stream unless he
owns property on both sides and then the streambed is the exclusive property of the
landowner. A riparian owner who owns both sides of a non navigable water may
maintain a trespass action against anyone using the water.
The boundary line along a stream may change as the stream itself changes. This
depends on whether the change is by accretion or avulsion. Accretion is the slow
addition of land to the banks caused by the washing action of the body of water and
ordinarily belongs to the adjoining landowner. Avulsion is the sudden loss or addition of
land by the actions of the water and does not change the boundary from its original place.
Erosion is the slow wearing away of land by water that results in a change in the
boundary. Reliction is the gradual lowering of the water level in a natural lake resulting
in the addition of land to the landowner. Submergence is the opposite of Reliction and
involves the gradual and permanent inundation of land that was once dry.
Artificial lakes are not governed by these rules. Artificial lakes are generally governed
under the law that was used to create them. This may be federal law if the lake was
created by the U.S. Army Corps of Engineers or it may be state law if the lake was
created by an entity governed by state law.
V. Diffuse Surface Waters
Diffuse surface waters (runoff) may originate from any natural source. They are
short-lived and are spread over the ground but not yet concentrated enough to form a

channel flow or a lake. Landowners may want to use these waters or they may want to
get rid of them (e.g., drainage or obstruction). The courts follow various rules when
deciding cases related to getting rid of diffused surface water: (1) civil-law rule, (2)
common-enemy rule, or (3) rule of reasonable use (the one adopted by North Carolina
courts).
VI. Special Districts
The legislatures of many states have created special districts to deal with water,
such as levee and drainage districts and soil and water conservation districts. These
districts generally can acquire easements by condemnation and can construct and
maintain drainage systems. The costs are borne proportionally by the affected
landowners.
VII. Capacity Use Areas
North Carolina now has two capacity use areas where large withdrawals of groundwater
are restricted.