The Fayette Tribune, Oak Hill, W.Va.

February 24, 2014

Legal questions hover over bill allowing state to claim water

By Pamela Pritt
Register-Herald Reporter

— Issues about surface and groundwater, common law vs. constitutional law and potential liability caused the Senate’s Committee on Finance to lay over a bill that would place ownership of the state’s water resources with the people of West Virginia. The bill would allow voters to decide if the state should claim that ownership in the constitution instead of only in statute as it now stands.

The bill’s author, Sen. John Unger, D-Berkeley, said the bill would protect West Virginia from another state building a pipeline and taking water from the Ohio River, for instance. Unger said when this state seceded from Virginia, it claimed the land, but not the water. Western states are having such issues in light of severe droughts. He said a constitutional amendment claiming the waters for the people of the state is part of a three-pronged approach to ensuring the waters cannot be claimed by other states. The waters must also be inventoried and then managed, Unger said.

Senators were afraid that private wells, because they were not specifically excluded, would become the state’s property.

“The water underground has no boundaries,” said Sen. Doug Facemire, D-Braxton “You do not own the water under your land. There’s a right of capture.”

Facemire said once a landowner drills a well, that person can pump all the water he or she wants to from the underground source, without regard for whoever else may be tapping into the same source.

Sen. Truman Chafin, D-Mingo, an attorney, said Facemire was correct. Chafin said a constitutional amendment will trump that common law and “every drop that you can imagine” will be claimed by the state. Every time anyone has a dispute about the water, the state will be involved in the suit from the federal courts on down, because it is the first party in interest, Chafin said.

He suggested having the bill studied by constitutional attorneys before it is sent to the Senate floor.

Sen. Erik Wells, D-Kanawha, referred to the recent chemical spill in the Elk River, which put some 300,000 state residents without the use of their tap water for more than a week for drinking, bathing and cleaning. Wells wanted to know if the state would have liability if it claimed to own the water constitutionally.

“Would it be our problem?” he asked.

“Absolutely,” Chafin said. “Everyone who wanted to sue would turn around and sue the State of West Virginia.”

Sen. Craig Blair, R-Berkeley, said he thinks the intent of the bill is good.

“I believe the concept is the right one,” Blair said, “but it can be construed in a multitude of ways.”

— E-mail: ppritt@register-herald.com