You asked who owns groundwater in Connecticut. The Office of Legislative Research is not authorized to provide legal opinions and this report should not be considered one.

SUMMARY

No specific state law governs groundwater ownership. Connecticut is one of several states that follow the “absolute ownership rule” established under English common (non-statutory) law. Under this doctrine, the property owner owns the soil beneath his property and the groundwater it contains. This allows him to intercept groundwater that otherwise would have been available to a neighboring water user, as long as he does so without malicious intent.

However, the Connecticut Supreme Court has held that a property owner’s ability to use underlying groundwater does not allow him to pollute it, and the absolute ownership rule does not apply to surface water, such as rivers, streams, and lakes.

Although the property owner owns the groundwater under his land, a number of state laws and regulations affect groundwater use. For example, a local health department must test a private well before it can be used for drinking, bathing, or other domestic uses; the state Well Drilling Code requires that wells produce a certain yield; and state environmental laws recognize a “public trust” in the state’s air, water and other natural resources.

ABSOLUTE OWNERSHIP

Absolute ownership is the rule in Connecticut, Indiana, Louisiana, Maine, Massachusetts, Mississippi, Rhode Island, and Texas (“Who Owns the Water: A Summary of Existing Water Rights Laws,” Water Systems Council (2003)).

The landmark case establishing absolute ownership in Connecticut is Roath v. Driscoll (20 Conn. 533 (1850)), involving a situation where an excavation made on one person’s property affected the water level on his neighbor’s land. The Connecticut Supreme Court, after finding that the first property owner did not intend to harm his neighbor when he excavated the land, held that he had a right to do so.

“Each owner has an equal and complete right to the use of his land, and to the water which is in it” (italics in original), the Court held. “Water combined with the earth, or passing through it, by percolation, or by filtration, or chemical attraction, has no distinctive character of ownership from the earth itself; not more than the metallic oxides of which the earth is composed” (Roath at 540).

Limitations on Use of Groundwater

Attitudes towards groundwater use change as scientists learn more about groundwater flow and about aquifers, underground layers of rock and soil that contain groundwater (Connecticut Water Law: Judicial Allocation of Water Resources, Robert Reis, University of Connecticut Institute of Water Resources, (1967)). A number of states have adopted a “correlative rights” approach to groundwater ownership, which balances the individual rights of landowners with other users of the same aquifer.

Although the Connecticut Supreme Court has not overturned that portion of Roath addressing interference with groundwater levels, it has noted the change in attitude as it affects groundwater pollution. In Swift & Co. v. People’s Coal & Oil Co. (186 A. 629 (Conn. , 1936)), the Court noted the law does not allow a property owner to poison the air above his land so that the poison drifts onto his neighbor’s property. Similarly, the Court held, he could not “so contaminate the water that flows from his land to his neighbor, producing the same results, and still escape liability for the damages sustained…The right to foul water is not the same as the right to get it” (Swift at 633).

PF: ts