Groundwater in the Great Lakes Basin

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APPENDIX L Summary of Laws Affecting Goundwater in the Great Lakes Basin CONTENTS INTRODUCTION 142 COMMON LAW PRINCIPLES 142 REGULATION OF GROUNDWATER ALLOCATION AND USE 142 REGULATION OF GROUNDWATER QUALITY 144 SELECTED LEGISLATION AND REGULATIONS AFFECTING GROUNDWATER 147 141
INTRODUCTION 142 Groundwater law across the Great Lakes Basin consists of a patchwork of statutes, regulations and common and civil law principles. This patchwork lacks consistency among jurisdictions. Groundwater law is primarily state and provincial, but includes some elements of federal, Tribal, First Nations and municipal law. This appendix reviews legal rules regulating groundwater allocation and use as well as maintenance of groundwater quality. It is not intended as a comprehensive review of all laws affecting groundwater in all basin jurisdictions. The approach is selective, intended to show the range of approaches, some commonalities and major differences among basin jurisdictions. COMMON LAW PRINCIPLES Groundwater rights are rights to use water and are linked to land ownership. Traditional common law and civil law principles distinguish between surface water and groundwater. Owners of lands abutting surface watercourses traditionally enjoyed “riparian rights” that allowed certain uses without restriction and some control over the quality and quantity of water flowing past one’s land. These rights balanced the interests of all riparian owners along a watercourse. By contrast, because the nature and movement of groundwater was “unknowable,” different rules were applied. The traditional starting point in most jurisdictions is an absolute right in the owner of overlying land, known as the “rule of capture,” to take and use as much groundwater percolating through the soil as he or she wanted regardless of the effect on others. The common law rules have been tempered in all jurisdictions. Most Great Lakes states now apply a “reasonable use rule,” as defined by statute or the courts, or as elaborated in the Restatement of Torts (Second). The reasonable use rule provides that groundwater is a property right but its use cannot cause unreasonable harm to a neighbour by lowering the water table or reducing artesian pressure, cannot exceed a reasonable share of the total store of groundwater in an aquifer and cannot create a direct or substantial effect on a surface watercourse. Another groundwater doctrine, applied in Minnesota, is the “correlative use” rule, which allows the courts to allocate rights to use groundwater among all users of an aquifer. Voters in Ohio recently approved a constitutional amendment that confirms the property rights of landowners to make reasonable use of the groundwater underlying their lands. The amendment also provides that groundwater underlying private land cannot be held in trust by the government, unless voluntarily conveyed, but that the government may regulate such waters. Ontario and Quebec follow legal rules similar to the property rights and reasonable use principles of U.S. law. In June 2008, the Quebec government introduced Bill 92 into the National Assembly to facilitate comprehensive water resources management. The bill includes a declaration that both surface and groundwater are “part of the common heritage of the Quebec nation and may not be appropriated except under conditions defined by law…” The bill also creates an action for damages or restoration that may be brought by the Attorney General “in the name of the state as custodian of the interests of the nation in water resources.” Quebec groundwater law is found in the Civil Code, statutes and regulations. Ontario groundwater law maintains a common law foundation but has been significantly modified by statute, as discussed below. REGULATION OF GROUNDWATER ALLOCATION AND USE Groundwater allocation and use are regulated by individual states and provinces according to each jurisdiction’s idiosyncratic rules and institutions. There is only limited commonality across the basin. Half of the jurisdictions − three states and both provinces − regulate groundwater withdrawals by requiring a government permit if the amount of the withdrawal exceeds a specified threshold or is intended for a particular use. The other five states require government notification or registration of some or all withdrawals, usually above a threshold amount. In Ohio, for example, registration is only required if the capacity is 100,000 gallons/day or more, but a lower threshold may be established in groundwater stress areas. Registrants are required to file annual reports with the state on the amount of groundwater withdrawn. Other groundwater users are not required to meter actual use. This is similar in most Great Lakes jurisdictions. All jurisdictions in the basin have established standards for the location, design and construction of wells. Many of the basin jurisdictions have identified areas of special concern for the management of groundwater. For example, the southeast section of Wisconsin and the Lower Fox River Valley each must implement a coordinated strategy to address problems caused by over-pumping of the deep aquifers. In Ontario, a special regime protects the regionally significant recharge zone in the Oak Ridges Moraine north of Toronto.
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AReportoftheGreatLakesScienceAdviso
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Citation: Great Lakes Science Advis
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Commissioners’ Preface The Great
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2 required to monitor basin groundw
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4 Systems have a 30-year lifespan d
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6 Groundwater quality is routinely
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8 Transmittal Letter Groundwater/An
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10 Acknowledgements, Activities and
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APPENDICES Appendices A through L p
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INTRODUCTION Groundwater, a major n
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16 DESCRIPTION OF NATURAL SYSTEMS M
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that are not substantially affected
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Estimates of the Level and Extent o
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APPENDIX B Threats to Groundwater Q
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24 PATHOGENS Bacteria, viruses and
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Viruses Viral pathogens continue to
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SPECIFIC EPISODES Walkerton In 2000
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30 season. The sampling sites inclu
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32 Curriero, F.C., Patz, J.A., Rose
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Infection of a suitable host specie
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APPENDIX C Threats to Groundwater Q
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Road salt has significant toxic eff
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converted to nitrite in the human s
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Atrazine Atrazine is an extensively
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Wisconsin DNR keeps track of about
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Table 1. Chemical Contaminants in G
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isks for 23 diseases in six contigu
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Figure 1. Number* of waterborne-dis
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Guidelines for Canadian Drinking Wa
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APPENDIX D Threats to Groundwater Q
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Figure 1. Source: General Descripti
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(Gorman and Halvorsen, 2006). Any s
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Table 3. Washtenaw County, Michigan
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that the OWTS would last until it w
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REFERENCES AND BIBLIOGRAPHY Aglie,
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Septic Tanks - Septic Tank Articles
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INTRODUCTION Leaking underground st
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sites that were previously closed,
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Table 1. USTs in Great Lakes States
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Estimation of Costs for Remediation
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Table 6. Operational Compliance of
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80 Indiana Government. (2007, Febru
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82 GLOSSARY AST - above ground stor
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INTRODUCTION 84 Hazardous wastes ar
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The town of Kincardine, Ontario, ha
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88 • The monitoring and surveilla
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Page 101 and 102: PAHs - Polycyclic aromatic hydrocar
Page 103 and 104: INTRODUCTION An abandoned well is d
Page 105 and 106: Figure 6: Leaking oil well Source:
Page 107 and 108: CONTAMINANT SOURCES 100 During any
Page 109 and 110: Nearly 16 million operational water
Page 111 and 112: • Development of a targeted progr
Page 113 and 114: 106 Michigan Department of Environm
Page 115 and 116: APPENDIX H Threats to Groundwater Q
Page 117 and 118: far reaching. Road salt can inhibit
Page 119 and 120: 112 Desalinization Potential water
Page 121 and 122: Gray, J. (2004, January). Brine Spr
Page 123 and 124: INTRODUCTION 116 In 2003 there were
Page 125 and 126: 118 feed has increased to upwards o
Page 127 and 128: References and Bibliography 120 Arn
Page 129 and 130: APPENDIX J Threats to Groundwater Q
Page 131 and 132: for recreational purposes and destr
Page 133 and 134: 126 errors (human or mechanical), p
Page 135 and 136: Apparent Losses Old meters are like
Page 137 and 138: Figure 6. Examples of Windsor, Onta
Page 139 and 140: REFERENCES AND BIBLIOGRAPHY 132 Ada
Page 141 and 142: 134 Levy, S. (2004, November 16). T
Page 143 and 144: APPENDIX K The Châteauguay Transbo
Page 145 and 146: 138 the clay sediments of the St. L
Page 147: REFERENCES AND BIBLIOGRAPHY Bureau
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Page 157 and 158: 150 Chapter 1501:15 Soil and Water
Page 159 and 160: 152 Title 29 - Water Resources Mana
Page 161 and 162: APPENDIX M List of Acronyms ADHD -
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Groundwater in the Great Lakes Basin

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