Difused Surface Water: Reasonable Use Has Become the Common Enemy


Diffused surface water, caused by precipitation, should be treated as a necessary asset to replenish aquifers used for drinking water, and not as waste to be disposed of by landowners. Groundwater aquifers were created, and can only be replenished, by precipitation that is allowed to seep underground. Ninety-nine percent of the drinking water for people in rural areas of America comes from groundwater aquifers. These aquifers are in danger of being contaminated or depleted, which could result in severe water shortages very soon. Legislators have failed to enact a comprehensive system to regulate the use of aquifers, relying instead on a plethora of conflicting federal laws, inconsistent state laws, and town ordinances. Courts have dealt with precipitation, and the storm runoff that results, as a “common enemy” of landowners, something to be disposed of, rather than a valuable and necessary asset. The existence of four different standards to impose liability for diversion of diffused surface water is burdensome, creates confusion and a lack of certainty and predictability, and is fundamentally unfair. These four standards are also ineffective in protecting the recharge of aquifers. A single standard should be adopted by all courts, with a significant amount of weight given to the impact of the defendant’s actions on the recharge of aquifers. This article suggests the standard and proposed factors to be considered by courts.


Energy and Utilities Law | Environmental Law | Property Law and Real Estate | Water Law

Date of this Version

August 2003