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AN INFORMATIONAL BRIEF PREPARED FOR MEMBERS OF THE OHIO GENERAL ASSEMBLY BY THE LEGISLATIVE SERVICE COMMISSION STAFF

Volume 127 Issue 10


December 20, 2007

Ohio Law Governing


Ground Water Ownership
and Allocation
PREPARED BY: JILL ROWLAND, LSC STAFF ATTORNEY
ERIC VENDEL, LSC STAFF ATTORNEY
REVIEWED BY: MARCIA A. COOPER, DIVISION CHIEF

Introduction

Ohio’s ground water is one of the state’s most valuable natural resources
and supports not only human life, but also the capacity for economic growth.
Therefore, it is not surprising that conflicts among competing water users
are common occurrences. Especially when such a conflict arises, it is useful
to understand how Ohio law governs issues related to the use of ground
water.

Reasonable use rule

Until 1984, the rule in Ohio was that one had no right to ground water;
in other words, if a landowner’s activities on adjacent land interfered with The determination of
a neighbor’s ability to withdraw ground water from beneath the neighbor’s the reasonableness of
a use of water depends
land, the neighbor had no legal redress against the interference.1 In 1984, on a consideration
the Ohio Supreme Court abolished this rule and instead adopted the rule of of the interests of the
reasonable use, specifically § 858 of the Restatement (Second) of Torts of person making the use,
the American Law Institute.2 In 1990, the Ohio General Assembly enacted a of any person harmed
bill that brought Ohio’s statutory law into accordance with the Restatement by the use, and of
society as a whole.
(Second) of Torts regarding the reasonableness of a use of water.3
The determination of the reasonableness of a use of water depends on
a consideration of the interests of the person making the use, of any person
harmed by the use, and of society as a whole.4 “Person” includes a political
subdivision of the state such as a municipal corporation.5

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Ground Water Ownership
LSC Members Brief
Vol. 127 Issue 10

Furthermore, in accordance with greater than 100,000 gallons per day


§ 858 of the Restatement (Second) of from all sources and certain other
Torts, all of the following factors must facilities located in ground water
be considered, without limitation, stress areas must register with the
in determining whether a particular Chief of the Division of Water in the
use of water is reasonable: (1) the Department of Natural Resources.8
purpose of the use, (2) the suitability In any determination of reason-
of the use to the watercourse, lake, able use of water under common
or aquifer, (3) the economic value law in which prior use is a factor, it
of the use, (4) the social value of the is conclusive that one use is prior to
use, (5) the extent and amount of the another in the quantity claimed if the
harm it causes, (6) the practicality of date of registration of one facility
avoiding the harm by adjusting the providing such use is prior to that of
use or method of use of one person another facility. But, if an issue of
or the other, (7) the practicality of prior use is a factor in a water dispute
adjusting the quantity of water used and the registration requirements
by each person, (8) the protection of do not apply, the determination of
existing values of water uses, land, prior use must be based on historical
investments, and enterprises, and information and documentation
(9) the justice of requiring the user provided by any person.9
causing harm to bear the loss.6 Thus, The application of the rule of
courts must resolve ground water reasonable use was affirmed in 2005
disputes by evaluating the facts of a by the Supreme Court of Ohio. The
particular case in accordance with the Court agreed to answer the question
balancing factors enumerated above. of whether an Ohio homeowner has
Under common law governing a property interest in so much of the
disputes involving competing water ground water located beneath the
uses, a determination regarding land owner’s property as is necessary
Ohio land owners have whether a use of water is reasonable to the use and enjoyment of the
a property interest in may be based in part on which use owner’s home. The federal Sixth
the ground water under occurred first. The Revised Code Circuit Court of Appeals asked the
their land; governmental
interference with that
recognizes this common law and Supreme Court of Ohio to clarify
right can constitute an specifies that, in certain cases, a that question of state law with regard
unconstitutional taking. determination regarding which water to cases before the federal court. In
use occurred first is dependent on the case deciding the question, the
compliance with certain statutory Court upheld the rule of reasonable
registration requirements governing use and stated that the rule protects
water use.7 In addition, it provides property rights in ground water,
that any person who owns a facility rather than limiting them, because
that has the capacity to withdraw ground water rights are a separate
waters of the state in an amount right in property.10 Furthermore, the

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Court held that “. . . Ohio landowners Registration and reporting


have a property interest in the requirements for certain
ground water underlying their land
water withdrawal facilities Any person who
and that governmental interference
owns a facility that
with that right can constitute an has the capacity to
Any person who owns a facility
unconstitutional taking.”11 withdraw more than
that has the capacity to withdraw
100,000 gallons per
waters of the state in an amount day of the waters of
greater than 100,000 gallons per the state must register
Water resources inventory day from all sources must register the facility with the
the facility with the Chief within Chief of the Division
In addition to the above provisions three months after the facility is of Water within three
concerning reasonable use, the completed.13 The Chief may establish months after the
facility is completed.
Revised Code requires the creation a lower threshold withdrawal capacity
of a water resources inventory that at which registration is required
may be useful for planning purposes regarding the withdrawal of water in
related to ground water supply. The a ground water stress area. The Chief
Chief of the Division of Water must may determine that an area is a ground
develop and maintain, in cooperation water stress area in accordance with
with local, state, federal, and private standards and criteria that he must
agencies and entities, the water establish by rule. A person who owns
resources inventory for the collection, a registered facility must file a report
interpretation, storage, retrieval, annually with the Chief listing the
exchange, and dissemination of amount of water withdrawn per day
information concerning the water by the facility, the return flow per day,
resources of Ohio, including, but and any other information that the
not limited to, information on the Chief may require by rule.
location, type, quantity, and use of
those resources and the location,
type, and quantity of consumptive
Permit requirements for
use and diversion of the water
resources. 12 The water resources certain diversions and
inventory also must include, without withdrawals
limitation, information to assist in
determining the reasonableness of Further, the Revised Code requires Ohio law requires a
water use and sharing under common a permit to be obtained for certain permit to be obtained
law, promoting reasonable use and diversions of water and requires a for certain diversions
of water and requires
development of water resources, and different permit to be obtained for
a different permit
resolving water use conflicts. All certain withdrawals of water. No to be obtained for
agencies of the state must cooperate person may divert more than 100,000 certain withdrawals
with the Chief in the development and gallons per day of any waters of of water.
maintenance of this inventory. the state out of the Lake Erie or the
Ohio River drainage basin to another
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Ground Water Ownership
LSC Members Brief
Vol. 127 Issue 10

basin without having a permit to do and economics of the various


so issued by the Director of Natural alternatives.
Resources.14 (3) The proposed plans for the
Additionally, state law prohibits, withdrawal, transportation, develop-
with certain exceptions, a person from ment, and consumptive use of
allowing a facility that the person water resources do not incorporate
owns to withdraw waters of the state maximum feasible conservation
in an amount that would result in a practices as determined by the
new or increased consumptive use of Director, considering available tech-
more than an average of 2,000,000 nology and the nature and economics
gallons of water per day in any 30-day of the various alternatives.
period without first obtaining a permit (4) The proposed withdrawal and
from the Director.15 “Consumptive consumptive uses do not reasonably
use” means a use of water resources, promote the protection of the public
other than a diversion, that results in health, safety, and welfare.
a loss of that water to the basin from (5) The proposed withdrawal will
which it is withdrawn and includes, have a significant detrimental effect
but is not limited to, evaporation, on the quantity or quality of water
evapotranspiration, and incorporation resources and related land resources
of water into a product or agricultural in this state.
crop.16 (6) The proposed withdrawal is
A person who wishes to obtain a inconsistent with regional or state
consumptive use permit must submit water resources plans.
an application containing specified (7) Insufficient water is available
information to the Director.17 The for the withdrawal and other existing
Director cannot approve an application legal uses of water resources are not
for a consumptive use permit if the adequately protected.18
Director determines that any of the The Director may hold public
following criteria applies: hearings regarding an application for
(1) Public water rights in a consumptive use permit and must
navigable waters will be adversely approve or deny a permit within a
affected. time period established by rule.19 In
(2) The facility’s current con- addition, the Director must determine
sumptive use, if any, does not the period for which each approved
incorporate maximum feasible permit will be valid, which period
conservation practices as determined cannot extend beyond the life of the
by the Director, considering avail- project as stated in the application.20
able technology and the nature

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Relevant authority of Chief as discussed above. The technical


of Division of Water information presented, the report
prepared, and any recommendations
The Revised Code requires the made must be presumed to be prima-
Chief of the Division of Water to facie authentic and admissible as
evidence in any court.22 The Chief of the
hold meetings or public hearings, Division of Water
whichever is considered appropriate The Revised Code also authorizes must hold meetings
by the Chief, to assist in the resolution the Chief to conduct basic inventories or public hearings to
of conflicts between ground water of the water and related natural assist in the resolution
resources in each drainage basin in of conflicts between
users. The meetings or hearings
the state and to develop a plan on a ground water users.
must be called upon written request
from boards of health of city or watershed basis that will recognize the
general health districts or certain variety of uses to which water may be
other authorities having the duties of put and the need for its management
a board of health, boards of county for those uses. This authority is in
commissioners, boards of township addition to the requirement that the
trustees, legislative authorities of Chief develop a water resources
municipal corporations, or boards of inventory as discussed above. Also
directors of conservancy districts. In under state law, the Chief must
addition, a meeting or public hearing perform ground water gauging and
may be called by the Chief upon the may contract with the United States
request of any other person or at the government or any other agency for
Chief’s discretion.21 the gauging of ground water within
At a meeting or hearing, the Ohio. Primarily with respect to
Chief must collect and present the ground water quantity, the Chief may
available technical information collect, study, map, and interpret all
relevant to the conflicts and to the available information, statistics, and
ground water resource. The Chief data pertaining to the availability,
must prepare a report and may supply, use, conservation, and
make recommendations, based on replenishment of the ground waters
the available technical data and the in the state in coordination with other
record of the meetings or hearings, state agencies. Finally, primarily
about the use of the ground water with regard to water quantity and
resource. In making the report and availability, the Chief may cooperate
any recommendations, the Chief may with and negotiate for the state with
consider the factors established in the any federal agency or any agency of
Revised Code for determining whether this state or another state pertaining to
a particular use of water is reasonable the water resources of Ohio.23

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Endnotes
1
Frazier v. Brown, 12 Ohio St. 294 (1861).
2
Cline v. American Aggregates Corporation, 15 Ohio St.3d 384, 474 N.E. 2d 324 (1984).
3
Sub. H.B. 476 of the 118th General Assembly, which is codified as R.C. §§ 1521.16 and
1521.17.
4
R.C. § 1521.17.
5
R.C. § 1521.01.
6
R.C. § 1521.17.
7
Id.
8
R.C. § 1521.16.
9
R.C. § 1521.17.
10
McNamara v. Rittman, 107 Ohio St.3d 243, 246-247; 838 N.E. 2d 640, 646 (2005).
11
Id. at p. 249.
12
R.C. § 1521.15.
13
R.C. § 1521.16. “Waters of the state” includes all streams, lakes, ponds, marshes,
watercourses, waterways, wells, springs, irrigation systems, drainage systems, and other
bodies or accumulations of water, surface and underground, natural or artificial, regardless
of the depth of strata in which underground water is located, that are situated wholly or
PUBLISHED BY THE OHIO partly within or border on this state or are within its jurisdiction. R.C. §§ 1501.30(A)(6) and
LEGISLATIVE SERVICE
COMMISSION STAFF 1521.01(A).
14
R.C. § 1501.32.
15
R.C. § 1501.33(A).
9th Floor
16
Vern Riffe Center R.C. § 1501.30(A)(1).
Columbus, Ohio 17
R.C. § 1501.33(A).
614/466-3615
18
R.C. § 1501.34(A).
19
R.C. § 1501.34(B) and (C).
Interim Director
29
Mark C. Flanders R.C. § 1501.34(B).
21
R.C. § 1521.03.
Contributing Authors 22
Jill Rowland, Id.
LSC Staff Attorney 23
Id.
Eric Vendel,
LSC Staff Attorney

Reviewer
Marcia A. Cooper,
Division Chief

Layout & Design


Jeanette Cupp

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December 20, 2007