What’s your favorite place to sit back and listen to the world? Mine is the porch of an old log cabin up in the Blue Ridge. The greatest thing about that place is that it sits high up over a stream as it drops through a steep gorge–high up, but still close enough to hear the water flowing and falling, constantly, soothingly. That movement of water through our world is absolutely fundamental to life as we know it. That’s one reason that the sound of a mountain stream or of ocean waves (or in their absence, an urban fountain or garden water feature) is so deeply satisfying to humans. But that incessant movement of water also makes it hard to fit into traditional, naive notions of property rights. In two earlier posts, I discussed some ways in which water, especially groundwater and stormwater, challenge and extend our understanding of property. Now let’s consider surface water when it is collected into streams, rivers and lakes, again focusing on the law of North Carolina (which is very similar to the law of most eastern states in the U.S.). In this entry I’ll refer to water collected into streams, rivers and lakes as “surface water” even though there is a lot more to be said about “diffuse” surface water, aka “stormwater,” but that must await Part 3.
This is the way the question often comes to me–who owns it?–as a way of asking either who controls water in NC (for beneficial purposes) or who is responsible for it when it does harm (e.g., flooding). Framing the question this way is an unsurprising reflection of the importance of property rights in American law. And property rights do matter for water law. But water, the great solvent, has a way of dissolving preconceptions about ownership of property and forcing anyone who really cares to reexamine their understanding of ownership itself. Things, like water, that are always moving, often in mysterious ways, and that are so vital to us that we can’t imagine life without them, just don’t fit well in simple definitions of “property.” To make matters especially complicated for water, the law has come to treat its ownership very differently as it moves through the eternal cycle in which it always moves: from ocean to sky, back to earth as rain (“stormwater”) or snow, then either infiltrating into the ground (groundwater) or into streams and lakes (surface water), and then passing through myriad human channels, including our own bodies, on its way back to the sea. In this post, I will outline the way NC law treats ownership of groundwater–probably our biggest and ultimately most important store of freshwater.