Can Property Owners Remove Water from Their Backyard Stream?

In Pennsylvania, streams are classified as a type of watercourse which state law defines as a distinct natural or artificial body of water flowing perennially or intermittently in a defined channel with bed and banks. Streams, rivers, creeks, sloughs, and canals all fall under this definition.¹. Pennsylvania has many watercourses. Over 85,500 miles (137,708 km) according to the state water plan, or enough to circle the Earth’s equator 3.5 times.²  

With so many watercourses, it's no surprise that thousands of landowners own property along them.  Some of them may wonder if they can legally remove water from their backyard stream for gardening, lawn watering, or other activities on their property. The answer is often yes, they may take some water for certain activities on their abutting property, but there are limitations and requirements that invoking this right may trigger.  Understanding a few basic water law principles can help landowners avoid actions that might infringe on the rights of other landowners and violate state rules.

Do landowners own the water in their backyard stream?

While property owners with a stream bordering or intersecting their land do enjoy special water use privileges that allow them to remove limited amounts of stream water, they don't own the actual water in the stream.  In Pennsylvania, the surface water in streams is held in trust by the Commonwealth for the benefit of all people, including future generations. The basic water rights and responsibilities that streamside property owners should be aware of before they take any water are addressed in both common and statutory laws.  The remainder of this article discusses a few common rules that streamside property owners may encounter, but water law is complex. The information presented in this article is not intended to be comprehensive or serve as legal advice.  At a minimum, property owners thinking about removing water from their backyard stream should consult with their County Conservation District and the Regional Department of Environmental Protection Office first.

Common law water rights

Common laws are rules that have become generally accepted over time based on the outcomes of prior court cases. Under common law, when a water rights dispute goes to trial, the court will review prior legal decisions (caselaw) to help reach a verdict. Common law precedents shaped by centuries of trial law are responsible for our current understanding of many fundamental private water rights.³ One of the most significant is the doctrine of riparian rights.

The term "riparian" refers to land bordering watercourses, and people who own land along these streams and rivers may be referred to as "riparians".  The common law doctrine of riparian rights allows riparians to remove water from watercourses adjacent to their land for reasonable uses on the property as long as the water rights of other riparians – upstream or downstream -- are not unreasonably harmed.⁴  Various court cases have identified many reasonable water uses.  Common examples include water removed for drinking, cooking, and livestock watering, which were all very important activities for European settlers in early Pennsylvania and still apply to some property owners today, especially farmers.

The modest water withdrawals most private landowners may make for occasional needs are likely to fall under the definition of reasonable use, unless they divert stream water off the streamside property, which is prohibited by common law. Taking large amounts of water may also trigger concerns among downstream property owners and, if the withdrawal exceeds statutory law thresholds, which are discussed below, require registration with DEP or even a permit from one of the State's river basin commissions. 

While water removals that threaten stream habitat or a downstream community's water supply may prompt action by local or state government, more often it is a downstream neighbor who feels their water rights have been infringed upon.  When one riparian feels the water levels in their backyard stream have declined due to the water removal actions of another riparian, and friendly efforts to resolve the situation fail, courts may be needed to determine if their riparian rights have been unreasonably harmed. For better or worse, it is often unclear what constitutes "unreasonable" water use.  The ambiguity surrounding the term is a permanent feature of the riparian rights doctrine, which, like other common law doctrines, is inherently designed to continually evolve based on the outcomes of new court cases.⁵ Statutory laws on the other hand are painstakingly designed to leave little room for interpretation.

Statutory water law

Statutory laws and regulations are developed by federal and state legislators as part of the legislative process.   While federal rules do impact the water rights of riparians in Pennsylvania, particularly when it comes to matters involving water pollution and navigability, state laws more directly spell out how much water private individuals may remove from their backyard stream before they need either a permit from a state river basin commission, or need to register their withdrawal with the Pennsylvania Department of Environmental Protection (PADEP).

The State of Pennsylvania belongs to both the Delaware River Basin Commission (DRBC) and the Susquehanna River Basin Commission (SRBC).  Each of these commissions is an interstate agency authorized by the Pennsylvania state legislature to regulate water withdrawals inside their respective watersheds. The DRBC oversees water withdrawals in the Delaware River basin, and the SRBC does the same for the Susquehanna River watershed.

Table one lists the amount of water a riparian in Pennsylvania would need to exceed to fall under the regulatory review of either basin commission or be required to register their withdrawal with PADEP, as required by the Pennsylvania Water Resources Planning Act of 2002.^6,7,8

Except for farmers who use surface water for livestock and crops, most riparians will never withdraw enough surface water to worry about exceeding the surface water withdrawal thresholds listed in Table 1. It should be noted that the Pennsylvania Water Resources Planning Act of 2002 allows riparians to voluntarily register water withdrawals less than the 10,000-gallon-per-day threshold that makes registration and related water use reporting mandatory. This information provides natural resource managers with additional data to help manage Pennsylvania's overall water supply and avoid shortages that may harm fish and wildlife, damage water quality, or leave communities unprepared for droughts.

References

1. Title 27 Chapter 31 Section 2, Consolidated Statutes, Pennsylvania General Assembly.
2. The Digital Water Atlas of Pennsylvania's State Water Plan, 2002.
3. Access and Allocation of Water in Pennsylvania, Charles Abdalla, The Pennsylvania State University, 2008.
4. A Short Review of Pennsylvania Water Law, Pamela Bishop, Pennsylvania Department of Environmental Protection, 2006.
5. The Purposeful Messiness of United States Caselaw, Stephen Wolfson, University of Pennsylvania.
6. Susquehanna River Basin Commission Compliance and Enforcement Program.
7. Delaware River Basin Commission Project Review / Permitting.
8. Commonwealth of Pennsylvania, Chapter 110 – Requirements for Water Withdrawal Registration and Reporting.