Comparison of Groundwater Ownership Regimes in Ten Jurisdictions Across Five Continents

Abstract

The regulation of groundwater remains underdeveloped globally and often lags behind the domestic governance of surface water. As a result, groundwater is often subject to unfettered extraction, uses, and contamination. A clear understanding of ownership is central to the success of domestic regulations. However, the types of ownership regime in place in nations around the world are poorly documented in the academic literature. This study addresses that gap through a comparative analysis of domestic groundwater ownership regimes across ten jurisdictions in nine countries spanning five continents. It identifies three dominant models of groundwater ownership: private ownership, public ownership, and non-ownership with public oversight. It then examines how these ownership doctrines impact key dimensions of groundwater governance, including the nature and transferability of the ownership right, the level of government at which regulation takes place, implications for rights of use, and interactions with customary and Indigenous rights. Doing so offers unique insight into how nations with different legal traditions, governance structures, and customary practices address the ownership of groundwater resources. It also suggests that different ownership (and non-ownership) models can have distinct implications for other aspects of groundwater governance.

1. Introduction

Groundwater is the most extracted natural resource on Earth with more than 1,200 cubic kilometres (km³) extracted worldwide in 2021 to meet agricultural, industrial, drinking, sanitation, and hygienic needs. ¹ That is nearly 300 times the global volume of oil extracted annually in the same year. ² Around 40% of the world’s production of irrigated crops is dependent on groundwater, while 69% of withdrawn groundwater is applied to agriculture; ³ 31% of groundwater withdrawals are used in the combined municipal, industrial, and commercial sectors; ⁴ 45% of humanity’s freshwater needs for everyday domestic uses, such as cooking and hygiene, come from groundwater; ⁵ and more than half of all drinking water originates from freshwater aquifers. ⁶

Groundwater resources worldwide are facing significant threats. Studies suggest that global storage capacity of groundwater is declining at a rate of approximately 17 km³ annually as a result of over-exploitation and subsidence. ⁷ Per- and polyfluoroalkyl substances (PFAS) and other ‘forever’ chemicals are now found in a significant number of aquifers worldwide at levels that exceed safe levels of many nations’ health and environmental agencies. ⁸ Moreover, climate change and resulting desertification are placing increased stress on groundwater resources, ⁹ in both developed and emerging economies, many of which are already heavily dependent on groundwater abstraction to meet daily water needs. ¹⁰

Despite these significant dependencies and threats, groundwater regulation at the national level in the majority of nations is not well developed and lags far behind the governance of surface water resources. This can be attributed to the invisible character of groundwater, as well as a misunderstanding of the science of groundwater resources. ¹¹ Even in countries where subsurface water has been regulated, the results have been limited and lacking, often without any effect on unfettered extraction, uses, and contamination. ¹²

To date, only a few studies involving a handful of nations or a region have explored national groundwater governance comparatively. ¹³ None, however, have approached these issues systematically or directly placed multiple systems from multiple regions of the world in a comparative context. As a result, nations have had few opportunities to explore and learn from the successes and failures of other countries. In order to develop a more robust comparative assessment, enhance understanding of this nascent area of law, and offer nations greater opportunities to explore the groundwater governance experiences of other countries, information needs to be compiled and assessed for specific groundwater regulatory mechanisms and approaches implemented by governments around the world.

This article is a first step towards that objective. It presents the results of a pilot project designed to compare one important aspect of domestic groundwater governance: the ownership regime. The project is part of a larger effort to explore groundwater regulations in various countries, compare specific components and factors of different regulatory approaches addressing distinct groundwater-related issues and challenges, identify commonalities and differences in those regulatory approaches, and enhance knowledge about groundwater governance that could be informative for other researchers, as well as nations around the world.

To this end, Section 2 of the article describes the methodology of the study, which may be best portrayed as a desk study. Section 3 provides a definition and interpretation of the concept of ownership, which underpins the analysis of this study. Thereafter, Section 4 examines the survey results in relation to the questions posed in the surveys. Section 5 offers concluding remarks.

2. Methodology

The initiative as the basis of this article was launched as a pilot project both to test the proposed methodology and to assess whether the results could be informative to the broader community, to include policymakers, water managers, and academics. The project was initiated under the auspices of the International Association for Water Law (AIDA), a non-governmental, professional membership association working at the intersection of water law, governance, and policy. AIDA was selected based on its considerable network of legal and related professionals specializing in water law and regulation. Its members come from nearly 40 countries on all six inhabited continents and serve in governmental, non-governmental, academic, and private sector professional roles.

While diversity in the geographic distribution and legal approaches to groundwater resources was a priority for the selection of countries to include in the pilot project, participants in the project were all AIDA members who volunteered to contribute to the effort. Moreover, each contributor was asked to conduct research only on domestic groundwater law and regulation in jurisdictions with which they were familiar. As a result, the volunteer participants’ distinct backgrounds and experiences dictated the countries and subnational jurisdictions that were included in this pilot project: Argentina, Chile, China, Costa Rica, Italy, Kenya, the Netherlands, South Africa, and the United States (US) states of California and Texas. ¹⁴ Despite the limited sample size, the jurisdictions included in this study employ a variety of civil law, common law, and mixed legal traditions, are found on five continents, and include two with a federal political system. While the study is not intended to represent the full range of groundwater ownership approaches globally, the authors believe that the sample is adequately representative of such regimes.

For this pilot study, only one specific aspect of groundwater governance was selected for review in order to ensure that the research and its scope, as well as the mechanisms for conducting the research and comparing the results, could be managed adequately. The single issue reviewed in this project, which was collectively selected by the pilot project participants, was the domestic ownership regime for groundwater.

An eight-question survey template was prepared to guide each participant’s research. The questionnaire is available in the online supplementary materials to this article. Each author then completed an initial draft of their survey by responding to the questions, after which the drafts were reviewed under a modified single-blind review process. Next, a research assistant who did not work on any of the surveys randomly assigned three surveys to each survey author for their review, making sure that authors were not assigned their own surveys for review. This process ensured that every survey was reviewed by three or four pilot project participants. Reviewers were asked to focus on whether the surveys adequately and thoroughly answered the survey questions, and to ensure internal consistency within each survey. Given their respective backgrounds, reviewers were not asked to evaluate the substantive accuracy of the surveys. Thereafter, the surveys were returned to the research assistant who anonymized the feedback and returned it to the survey authors. Authors then revised their surveys and submitted their final drafts. The finalized surveys were used as the foundation for this article, which was drafted by a subgroup of the pilot project participants. Given their structure and nuances, as well as the need for explanation and qualifications, the surveys are not summarized in this article; rather, the results of the surveys have been incorporated into the ‘Discussion’ section of this article (Section 5). The completed surveys are available as online supplementary materials to this article.

3. Defining ‘Ownership’

In developing a comparative perspective on the ownership of groundwater, it is useful to understand what ownership means. This is challenging as concepts of ownership, especially of a transitory natural resource like groundwater, can vary widely across jurisdictions. Generally, ownership can be defined as the exclusive right to possess, use, and dispose of property. It encompasses the rights to control and manage the property, benefit from its use, and transfer it to others through sale, gift, or inheritance. ¹⁵ Building on this understanding, ‘property’ is generally understood to refer to the thing that is subject to ownership. ¹⁶ In other words, ownership is applied to things that constitute property. These understandings of ownership and property, however, are intentionally generic and find considerable distinctions and nuances in various legal traditions. Moreover, various legal traditions differentiate between full or absolute ownership, and ownership of or entitlement to a right of use.

In the American Common Law tradition, property is described in terms of a bundle of rights or entitlements that are malleable, the content of which depends on the character or quality of the thing that is being subjected to ownership. ¹⁷ While the right to exclude is especially important in common law conceptions of ownership, ¹⁸ the bundle also includes entitlements, inter alia, to possess, use, enjoy without interference, derive income from, transfer, and even destroy property. ¹⁹ At least in theory, each of these rights and entitlements can be disconnected from the whole and enjoyed and conveyed independently.

The Civil Law tradition views property more monolithically, with ownership as the foundation of the entire property law system with exclusion at its core. ²⁰ This perspective allows owners substantial freedom to use their property free from interference by the government and non-owners. ²¹ Civil law draws heavily from Roman conceptions of ownership premised on a ‘triptych’ of three fundamental attributes: usus, ‘the right to use a thing’; fructus, ‘the right to have a thing produce whatever it produces or to administer it’; and abusus, ‘the right to dispose of a thing’. ²² This full collection of ownership attributes can be ‘dismembered’ into lesser property interests, which grant limited property rights, ²³ though the numerus clausus principle limits the number of accessory rights that can be created. ²⁴ These ‘accessory rights’ are different from ownership, which is unitary, and ‘have as their object the value of the asset’. ²⁵ The limited property rights created in this fashion ‘burden the exercise of the power of ownership, but the right of ownership itself remains whole’. ²⁶

While things like homes, automobiles, and even forests have been relatively easily incorporated into such ownership and property regimes, many jurisdictions have struggled to ascertain the legal character of fleeting natural resources like groundwater. Under Roman law, this stemmed, in part, from a belief that some resources had to be accessible to all. Thus, flowing water was generally treated as res communes, a resource that was incapable of ownership but was available for all to use. According to The Institutes of Justinian, ‘[b]y natural law, these things are the common property of all: air, running water, the sea, and with it the shores of the sea’. ²⁷ It is unclear whether groundwater was treated as res communes under Roman law. However, some early Roman texts suggest that groundwater was either considered as part of the overlying land or subject to ownership by capture. ²⁸

The challenges in ascertaining the legal character of groundwater, however, arise also from a lack of understanding of the nature of groundwater. For example, notwithstanding the public and interconnected nature of all freshwater resources, Roman law regarded groundwater underlying land subject to ius civile (civil law, or the law that applies to relationships between private citizens) as a part of the tract, ²⁹ but also bound every landowner to a correlative right to that groundwater. This governance approach effectively set the stage for well interference without providing an equitable solution. In the absence of understanding of how groundwater flows and functions, the Digest of Justinian records Marcus Claudius Marcellus asserting that ‘no action, not even the action for fraud, can be brought against a person who, while digging on his own land, diverts his neighbour’s water supply’. ³⁰

Not only was this neglect and misunderstanding of groundwater evident in Roman times, but it also appeared in more contemporary eras, resulting in a significant number of national legal systems failing to subject groundwater to any sensible ownership or property rules. For example, an English appellate court in the 1843 case of Acton v. Blundell concluded that ‘it would be unreasonable’ to grant rights to use subsurface water because its use may be hidden, leaving other interested parties ‘ignorant of its … adopted use’. ³¹ Courts in the US went further. In the 1911 case of New York Continental Jewel Filtration v. Jones, the Court of Appeals for the District of Columbia asserted that:

[p]ercolating subterranean water is a wandering thing, which, like the air, is not subject to any fixed rules of law. The existence, origin, course, and movement of such waters, and the causes which govern and direct their movements, are so involved in mystery, secrecy, and uncertainty as to render any attempt to establish or administer any set of legal rules with respect to them practically impossible.

Owing to its geographic and climatic origins, Islamic law developed a more substantial water law regime, including for groundwater resources. The term ‘Sharia’, which refers to the Islamic legal system, is actually rooted in freshwater resources and means ‘the path to water’. ³² With regard to groundwater, Islamic legal tradition generally prohibits ownership of freshwater resources, including the buying and selling of water. Traditionally, this public water could be used by anyone for any purpose as long as it would not lead to undue waste of or damage to the resource. ³³ However, under Sunni doctrine, anyone digging a well, whether on private or unoccupied land, gains an ownership interest in the water contained in the well. ³⁴ This legal system also affords well owners a buffer zone or harim around the well in which the well owner can prevent the installation of new wells that might have a negative impact on their well. ³⁵ Notwithstanding this attention to groundwater, even Islam-based laws for administering groundwater resources have been limited and only minimally address contemporary challenges such as depletion, climatic changes, contamination, and aquifer-dependent ecosystems.

Groundwater regulations, however, can also be found in other legal traditions. For example, while the early Chinese legal system primarily addressed surface water, its principles, such as equitable water distribution, remain highly relevant to managing groundwater resources. ³⁶ During the Ottoman era, the Ottoman Empire incorporated the majority of Islamic water principles into its legal regime, including those related to groundwater resources, much of which still influence the development of contemporary legal frameworks in many Arab states. ³⁷

Nevertheless, groundwater today remains a secondary (and often a tertiary) priority in most countries’ legal regimes governing freshwater resources. This is especially evident in jurisdictions where groundwater is treated as a part of the land. For example, the US state of Texas regards groundwater as part of the land and owned by the landowner, although it does recognize the possibility of severing ownership of the groundwater from that of the land. ³⁸ In such jurisdictions, comprehensive groundwater management plans are often thwarted by a lack of legal authority, leaving contemporary concerns – such as climate change, groundwater pollution, aquifer depletion, and impact on interrelated surface water resources – poorly addressed. Moreover, efforts in some countries that have sought to connect surface water and groundwater management through legal means have been stymied by ingrained traditional land-use practices. ³⁹

Previous scholarly work has identified certain archetypal forms of water ownership. These are not always neat, well-defined categories, and multiple forms of ownership may occur within a single jurisdiction. ⁴⁰ Nevertheless, they provide a useful organizing framework for categories of ownership. Firstly, under a private ownership system, all rights and obligations associated with ownership reside with individuals or private entities, enforceable against other individuals, entities, and the state alike. ⁴¹ In most cases, the private owners’ rights over the system are not absolute – they have an obligation to use the water they own in a socially responsible manner, as determined by the government of their jurisdiction. ⁴² Yet, a few jurisdictions, including one reviewed in this study, assign near-absolute rights to private owners. Secondly, and conversely, groundwater may be owned outright by the nation state ⁴³ under a public ownership system. ⁴⁴ The nation-state’s ownership may be vested in the local, regional, state, provincial, or national government, or jointly managed by some combination thereof. ⁴⁵ The relevant governing authority, as owner or public trustee, generally establishes a concession, permit or licensing system under which private owners acquire use rights in the water, and creates rules to control the use of the resource. ⁴⁶ Thirdly, under a common ownership or res communis system, a group may own a water resource collectively with equal rights to access and use it, while excluding non-owners from use of the resource. ⁴⁷ Between these second and third forms of ownership are various government trustee relationships, under which water is owned by the people of a nation and managed in trust on their behalf by the government. ⁴⁸ Fourthly, under a modern res nullius theory of ownership, water belongs to no one and is available for everyone’s use. ⁴⁹ Unlike the traditional Roman conception of the doctrine, however, modern forms of res nullius generally do not allow ownership of the resource to become privatized through occupation of the land overlying the groundwater. ⁵⁰

For purposes of the current study, the following offers a basic framework for ownership and property as applied to groundwater resources under domestic law. It is presented based on a review of the literature and the surveys included in this present project, but without offering an opinion as to the appropriateness of specific components of the framework. While the framework may be somewhat generic, it provides a foundation against which variations, deviations, and exceptions can be considered. It also offers a starting point from which to begin assessing the practicability, suitability, and scientific bases of the law.

The findings highlight how in some jurisdictions (The Netherlands and South Africa), groundwater is considered incapable of being property in any context, albeit subject to the management of public authorities; such management may be in the form of a public trust or other obligation required of national authorities. In other jurisdictions (Argentina, California, Chile, China, Costa Rica, Italy, Kenya, and Texas), groundwater is regarded as property capable of ownership and available for private and/or public purposes.

Where ownership in groundwater is recognized, ownership of the resource refers to the exclusive right to possess, control, use, manage, transfer, and dispose of the resource. In some jurisdictions (California and Texas), these components of ownership may be disassembled and held independently, while in others they remain firmly bundled (Argentina and China). Ownership of the resource can be held privately (Texas) or publicly (China, Costa Rica, and Kenya). Where the resource is held privately, ownership of groundwater may be granted in relation to land ownership or independent from land, and may be conferred while it is in the ground or upon capture. If held publicly, the resource is legally owned by the public or the state (Chile, China, Costa Rica, and Kenya), or by a subnational authority (provinces in Argentina and states in the US), or by a local community (Italy) with benefits and responsibilities defined by domestic legislation, governance structures, legal traditions, and customary practices.

It is noteworthy that this last category, in which the resource is held publicly, is quite broad and diverse. Variations can be found in the language used to legally assign ownership of the resource, including, for example: ‘owned by’, ‘held by’, ‘belongs to’, ‘vested in’, or ‘under the dominion of’. Differences can also be found in the designation of the recipient, such as ‘the state’, ‘the public’, and ‘the nation’. Additionally, the translation of some of these concepts and terms from their original language into English adds another layer of complexity. Whether there are meaningful differences in these terms and phrases is beyond the scope of this study. Nevertheless, and without venturing into degrees of democracy and representational governance, these differences may be tautological or relevant in specific jurisdictions, depending on the domestic governance structures, legal traditions and customary practices, and should not be discounted without scrutiny.

4. Review of Survey Results

Scholars in both civil and common law traditions have conceptualized property ownership as inherently relational. ⁵¹ Under the classical common law view (though, acknowledging that common law traditions can differ among nations), ‘rights in rem … should be regarded not as rights in a thing, but as relations between individuals, with each of them having an obligation not to interfere with the thing over which the other person has a property right’. ⁵² However, ownership of natural resources necessitates a different conceptual paradigm. It is a foundational principle of international law that nation-states have permanent sovereignty over their natural resources and, consequently, may set rules regarding their use and control. ⁵³ With regard to natural resources, then, the relevant ownership relation occurs primarily between the nation state (or a subnational unit) and the users of its resources. The contours of that relationship are established by the specific requirements of the nation-state’s laws governing natural resources. Only where the nation-state recognizes privatization of the resource will the ownership regime follow the more traditional individual–individual paradigm.

In this study, we examine various facets of ownership regimes that have been applied to groundwater resources in ten jurisdictions in nine countries on five continents around the world. We begin by comparing ownership systems, the foundation of the ownership relationship. The relationship is fundamentally different when ownership vests in the nation state (or a subnational unit) as compared to when it is allowed to vest in individuals. We then focus on two classical elements of the ownership relationship: the right to use, and the right to alienate. ⁵⁴ When the nation state owns groundwater, the right to use typically includes the exact parameters under which groundwater abstractions are permitted – for example, who may abstract water, in what quantities, under what conditions, and abiding by what rules. Similarly, the right to alienate becomes a question of whether that resulting usufructuary right (the right to use the resource) can be transferred, and under what circumstances.

After establishing the basic parameters of the ownership relation between state and user, we examine two aspects of how the nation-state (or a subnational unit) ensures that users abide by the terms of that relationship. This includes a discussion of the level of governance at which groundwater is managed or regulated, and the specific institutional arrangements relating to groundwater ownership. A substantial body of existing research focuses on the correlation between natural resource management and the devolution of ownership rights from the national government to more local levels. ⁵⁵ In some instances, the delegation of administrative or ownership rights to a subsidiary level of governance can add an additional actor to the nation-state/user ownership relation with the ability to alter the contours of the ownership right.

Finally, we look at two specific aspects of ownership emanating from international law: the recognition of Indigenous sovereignty and practices, and the human right to water. Indigenous peoples have a special connection with their traditional lands and the resources therein, which frequently forms the core of their cultural and spiritual identity. ⁵⁶ As part of this special relationship, aspirational principles of international law state that ‘Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use’. ⁵⁷ The Inter-American Court of Human Rights has recognized Article 21 of the American Convention on Human Rights as protecting Indigenous property rights over their ancestral territories, and the right to the use and enjoyment thereon. ⁵⁸ These Indigenous property rights necessarily implicate the ownership relationship between Indigenous peoples and the national government under whose jurisdiction they fall. Consequently, we seek to determine whether any nation-states have implemented this international obligation with respect to the rights of their domestic Indigenous populations to use and access the groundwater resources on traditional lands. With regard to the internationally recognized human right to water ⁵⁹ – because groundwater is an important source of drinking water, basic sanitation, and subsistence farming in many parts of the world – we seek to understand whether nations have altered any aspect of their ownership relationship over groundwater as a means to ensure a minimal amount of groundwater for all of their citizens.

4.1. The Nature of Groundwater Ownership

Can groundwater be owned? If so, by whom? Moreover, how does ownership of groundwater function, how is it implemented, and what are its contours or limitations? Overall, four types of groundwater ownership have been recognized in the literature: (i) ownership by national or provincial/state governments, (ii) non-ownership with a custodial or trustee role by the government, (iii) non-ownership until extraction, and (iv) private ownership of the resource. ⁶⁰

In our study of ten jurisdictions, we found that eight take the position that groundwater can be owned, either by the nation state through one or more of its organs or a subnational unit, or privately by individuals or entities. Five jurisdictions regard the national government as the owner of groundwater; these include Chile, ⁶¹ China, ⁶² Costa Rica, ⁶³ Italy, ⁶⁴ and Kenya. ⁶⁵ Two jurisdictions, Argentina ⁶⁶ and the US, ⁶⁷ consider groundwater ownership to be subject to the jurisdiction of subnational units, namely provinces or states. While in California, the state owns the groundwater on behalf of its population, ⁶⁸ in Texas, groundwater is deemed private property most often belonging to the overlying landowner. ⁶⁹ However, Texas also recognizes that groundwater in the ground can be owned separately from the land containing that water. ⁷⁰

An additional difference is that two jurisdictions in the study reject the notion of ownership of groundwater while it is in the ground. In South Africa, the national government is responsible to act as custodian or trustee of all legal title to water as public property. However, neither the state nor a private actor can own groundwater. ⁷¹ In the Netherlands, groundwater is considered res nullius (a thing that is unowned) until it is captured. ⁷² Once extracted via a spring, well, or pump, it becomes the property of the extractor. ⁷³ Nevertheless, the Dutch government, at various levels of the governmental framework, is tasked with the obligation to properly manage the resource. ⁷⁴

In the seven jurisdictions in which groundwater is considered to be owned by national or provincial/state governments, the government is expected to assume some level of responsibility for managing and protecting groundwater resources. However, our surveys do not reveal whether these jurisdictions have explicitly or implicitly established a public trust doctrine, whereby ownership is vested in the people while the state holds trustee obligations. Taking China as an example, the state is responsible for protecting, developing, managing, and utilizing groundwater resources, ⁷⁵ but Chinese scholars generally do not consider the national government as having trustee responsibilities. ⁷⁶

In addition, the legal authority that these nation states assign to themselves does not necessarily serve as absolute grounds for asserting their control over groundwater. For instance, whether a state owns the groundwater does not directly correlate with its right or power to use it. In South Africa, although water is not the property of the national government, the national government retains ‘a supervening right of use and enjoyment superior to that of individuals’. ⁷⁷ In contrast, in California, even though the state owns the groundwater, it does not have the right to use or possess it, though it can regulate its use. ⁷⁸ In fact, there is no state, regional, or local groundwater-permitting requirement in California beyond the need for a ministerial county permit for the drilling of a well. ⁷⁹

The scope of authority that ownership affords nations must be further differentiated from groundwater rights. Groundwater rights pertain to the legal right to withdraw groundwater from the subsurface and put it to a certain use. ⁸⁰ Such rights do not necessarily require or implicate ownership of the resource. Rather, in most jurisdictions groundwater rights must be obtained from a relevant governmental authority and depend on that authority’s permission to be implemented. This is the case in jurisdictions that ascribe ownership rights to the nation or the public (such as China, Costa Rica, and Kenya), as well as those that decline to recognize ownership of groundwater in its unextracted state (such as the Netherlands and South Africa). In contrast, in jurisdictions where groundwater is owned privately, such as Texas, groundwater rights are simply derived from ownership of the resource. ⁸¹

Finally, where ownership of groundwater resources resides with the public or the nation, or where the government is placed in a trust relationship to manage the resource, regulation seems to be more substantial. In China, Costa Rica, Kenya, and South Africa, ⁸² for example, the right to abstract groundwater can be achieved only through a permit or a licence issued by the government. Such permits and licences are limited in the sense that they cannot be transferred, are of limited duration, and are restricted to a precise volume of water for use at a specific location.

In contrast, the exercise of private groundwater ownership in Texas is considerably less regulated. While use of the resource must not intentionally or maliciously infringe other owners’ rights or lead to wilful waste of groundwater, ⁸³ Texan courts typically interpret these rules broadly. As a result, no cases were identified as finding unlawful groundwater use. ⁸⁴ Beyond these minimal judicial constraints, the Texas Water Code empowers groundwater conservation districts to regulate the construction and spacing of wells; requires permits for both well construction and groundwater extraction; enforces extraction limitations to address subsidence, protect water quality, and maintain recharge and discharge zones. ⁸⁵ However, the districts must temper their use of these regulatory tools to avoid over-regulation. Because groundwater in Texas is owned as private property, over-regulation can be viewed by the courts as governmental expropriation. ⁸⁶

In a different vein, albeit with a comparable outcome, the ‘non-ownership until extraction’ policy applied in the Netherlands may limit the nation-state’s ability to regulate groundwater. Although the Dutch Water Act mandates that ‘[e]xtraction of groundwater … without a permit … shall be prohibited’, ⁸⁷ even groundwater that is extracted illegally can be owned and traded once the resource is withdrawn from the ground. Such an approach has the potential to encourage or contribute to illegal groundwater extraction. ⁸⁸ Smaller operations often escape the attention of enforcement authorities, despite the requirement to apply for groundwater extraction permits. ⁸⁹ However, even in cases where ownership is explicitly held by the nation state, such as in China, in practice many instances of groundwater extraction also fall outside regulation and monitoring. ⁹⁰

4.2. The Right to Use Groundwater

Irrespective of the ownership of groundwater, eight of the ten jurisdictions included in this study provide some entitlement to use the resource, often termed a usufructuary right, through a government-managed concessioning, permitting, or licensing process. In a few jurisdictions, such processes create enforceable rights for that use. For instance, in California, ⁹¹ Chile, ⁹² and Texas, ⁹³ the right to use is regarded as a bona fide property right that is separate from the ownership of the groundwater. In California the usufructuary right is established by ownership of the overlying land, ⁹⁴ while in Chile it is related to the permit issued by the appropriate authority. ⁹⁵ In Texas, however, the right to use is rolled into the ownership regime, which recognizes private ownership in groundwater resources. ⁹⁶ Thus, while the government has authority to regulate groundwater use, the fundamental right to use lies with the owner.

In contrast, in China, ⁹⁷ Costa Rica, ⁹⁸ Kenya, ⁹⁹ the Netherlands, ¹⁰⁰ and South Africa, ¹⁰¹ while groundwater extraction is subject to a concessioning, permitting, or licensing requirement that does create a usufructuary right, that right is not officially regarded as a property right. Nevertheless, China appears to encourage the trading of water permits, which suggests that the right has some property interest with value. ¹⁰² Moreover, the South African National Water Act provides for the transfer of an administrative right of use under certain circumstances, likewise suggesting some sort of property interest in the right. ¹⁰³ However, a recent decision of the country’s highest court (the Constitutional Court) has created some confusion as to the parameters of how transfers may be restricted or permitted. ¹⁰⁴ In a related example, it remains a matter of considerable debate in Italy whether a concession creating a usufructuary right implies private ownership of the concessioned water, ¹⁰⁵ further intensified by statutory provisions granting authority to concessionaires to sell the concessioned water. ¹⁰⁶

Differences also concern the renewal of permits. In some jurisdictions (China, ¹⁰⁷ Costa Rica, ¹⁰⁸ Kenya, ¹⁰⁹ and the Netherlands ¹¹⁰ ), the concession, licence or permit expires after a specified period of time unless it is proactively renewed. While not conclusive, the expiry of the extraction authorization suggests very limited, if any, property rights in the authorization. Further, in China ¹¹¹ and Argentina, ¹¹² the concession is revocable by the governmental authorities, suggesting no property rights in the authorizing instrument.

4.3. Transferability of Ownership

The transfer of ownership of groundwater is related directly to whether the jurisdiction allows for private ownership of groundwater resources. Thus, of the ten jurisdictions surveyed in this study, only Texas allows transfer of the ownership of groundwater resources. While in most cases, this occurs in the context of land transfers, Texas recognizes the possibility of severing the groundwater estate as a distinct property right that is separate from the land. ¹¹³ As a result, in Texas it is possible to transfer ownership of the groundwater below a specific tract of land as a separate property interest distinct from the land. In the Netherlands and South Africa, the transfer of ownership of groundwater is an impossibility. This is because both nations reject ownership of groundwater resources in their unextracted, natural state. ¹¹⁴ In the remaining seven jurisdictions, where ownership rests with the public or the government, the transfer of ownership to private, non-governmental or other parties is prohibited.

The majority of these jurisdictions, however, recognize the possibility of transferring the usufructuary right – the right to use the groundwater – from one user to another. For example, Chile, ¹¹⁵ China, ¹¹⁶ and Italy ¹¹⁷ allow transfers of usufructuary rights and concessions provided that such transfers are authorized by the relevant governmental authority. In California, ¹¹⁸ Costa Rica, ¹¹⁹ Kenya ¹²⁰ and the Netherlands, ¹²¹ the right to extract from a specific tract of land is transferable primarily in conjunction with the sale of the land. While transfers of water use authorizations are permitted in South Africa, its Constitutional Court in 2023 considered that section 25(2) of the National Water Act does not expressly prohibit trading in water-use licences. The Court (at footnote 24) expressed its doubts that ‘a water use entitlement is a right that is capable of being sold in the legal sense’, echoing the intention of the National Water Act that an underlying right of use is an entitlement and not a true property interest. ¹²² Only in Argentina ¹²³ is the right of use (recognized as an administrative right) not transferable.

4.4. Institutional Arrangement Related to Ownership

The domestic institutional structure relating to the ownership of groundwater plays a lesser role in this analysis as seven of the ten jurisdictions covered by this study recognize that ownership of groundwater resources lies permanently with the nation-state or the people. ¹²⁴ As a result, there is no need to manage that ownership, although management of the resource and its uses are a separate matter. Similarly, in the two jurisdictions that disallow ownership of groundwater (the Netherlands and South Africa), at least while it is in the ground, an institutional ownership mechanism is unnecessary. In Texas, where private ownership is the norm, the institutional mechanism related to ownership is connected directly to the public registry for real property maintained by each county in the state, ¹²⁵ which pertains to the ownership of the land and, thereby, the groundwater below it. Even where the groundwater estate is severed from the land in which it is contained, that estate is recorded in the public property registry.

4.5. Level of Governance

The level of governance at which groundwater ownership and use are managed or regulated among the ten jurisdictions reviewed in this study can be broken down into national, state/provincial, and local levels. A fourth category is also present in which governance of ownership does not occur at all. In some circumstances, Indigenous, customary or traditional rights may also affect or modify groundwater governance.

Four jurisdictions take a very centralized approach and administer groundwater ownership exclusively at the national level. Management generally takes the form of concessions, permits, or licences issued by national agencies and ministries. In Chile ¹²⁶ and Costa Rica, ¹²⁷ groundwater ownership and use are governed under a national water law and implemented through a single national agency: the General Board of Water in Chile, and the Ministry of Environment and Energy in Costa Rica. In China and Kenya, groundwater ownership is vested and overseen at the national level, though some management of the use of the resource occurs at regional and local levels. In China, groundwater is governed at both the administrative regional and watershed levels. The water administration department of the State Council establishes basin management organizations for rivers and lakes designated as important for the nation, such as the Yellow River and Yangtze River. ¹²⁸ Local water administration departments at the county level and above are also responsible for the management of water resources within their respective administrative regions. ¹²⁹ This often creates confusion caused by overlapping governance and conflicting institutional priorities. ¹³⁰ Certain small-scale uses in China, however, may be exempt from groundwater withdrawal permits. ¹³¹ In Kenya, management occurs on three levels. The National Water Resources Authority (WRA) creates policies to conserve groundwater, receives and issues permit applications, and enforces permit conditions. ¹³² Basin Water Resource Committees are local catchment stakeholder groups that provide regional planning. ¹³³ Finally, at the most local level in Kenya, water resources users associations manage water for the local community. ¹³⁴

Argentina and the two US states of California and Texas take a substantially decentralized approach to the governance of groundwater ownership by assigning the responsibility to the provincial or state level. In Argentina, the national constitution assigns ownership, as well as the management and control of groundwater resources, to the country’s 23 provinces, ¹³⁵ each of which has its own water code. However, a Federal Water Council (COHIFE) promotes coordination and integrated water management. ¹³⁶ Meanwhile, in the US, regulation of groundwater ownership and governance has devolved to the states, including California and Texas. Therefore, each state has authority to regulate groundwater resource ownership according to their own state-level laws and policies. In Texas, where ownership of groundwater has always been regarded as the private property of the overlying landowner, management of groundwater resources occurs by local groundwater conservation districts, where such districts exist. ¹³⁷ Where these are absent, governance occurs through the court systems upon claims of interference with adjacent groundwater rights. ¹³⁸

In Italy, while the ownership of most groundwater resources lies with the state, the management of groundwater ownership and use lies at the regional level of general-purpose government, which can delegate it to the lower (provincial) level of general-purpose government. ¹³⁹ Local communities and municipalities oversee the ownership of communally held springs and are responsible for their management. ¹⁴⁰

In the Netherlands and South Africa, where neither country recognizes any sort of ownership of groundwater resources, there is no mechanism for managing the ownership of groundwater at any level of governance. Nevertheless, both governments, at various levels of authority, have responsibility to manage the resource on behalf of the public. In the Netherlands, for example, the proper permitting agency varies by use – the nation’s 12 provinces each regulate abstractions for drinking water supplies and a limited number of additional applications, ¹⁴¹ while regional water authorities oversee certain other uses. ¹⁴² In South Africa, catchment management agencies hold delegated powers to allocate water-use entitlements, while water user associations operate on a more restricted basis. ¹⁴³

4.6. Indigenous, Customary, and Traditional Practices

Of the ten jurisdictions included in the study, one-half – Argentina, Italy, the Netherlands, and the US states of California and Texas – have no laws recognizing Indigenous, customary or traditional water management practices. Italy, however, does recognize certain historical practices in which communal property status is applied to springs located on communally held land. ¹⁴⁴ Moreover, in California, a 2017 federal lawsuit recognized rights in groundwater for the Agua Caliente Band of Cahuilla Indians in the Coachella Valley of Southern California based on the argument that when the US created the Tribe’s reservation, that action implicitly included adequate water to sustain the purpose of that reservation. In this parched region of southern California, that understanding applies to groundwater. ¹⁴⁵

The other five jurisdictions surveyed for this study recognize such practices and incorporate them in various ways into their legal regimes. Chile recognizes ancestral water use rights that predate the national Water Code and afford superiority to those practices over all other claims of use. ¹⁴⁶ Similarly, Kenya recognizes Indigenous, customary, and traditional water management practices, but does not necessarily prioritize water use on designated public lands held in trust for the benefit of these communities. ¹⁴⁷ While neither Chile nor Kenya recognize groundwater ownership rights in their respective Indigenous communities, in affording primacy to those rights in relation to other water rights claims, both countries seem to recognize substantial property interests in the use of groundwater held by their Indigenous communities.

China, ¹⁴⁸ Costa Rica, ¹⁴⁹ and South Africa ¹⁵⁰ all recognize Indigenous, customary, and traditional water management practices in their legal regimes. However, in these jurisdictions, traditional water rights are subject to the national constitution and national legislation. In China, traditional practices are acknowledged, not in national legislation but rather at regional and local levels, and enforcement is usually left to each ethnic community. ¹⁵¹ However, it is important to note that their traditional beliefs, knowledge, and practices are facing increasing challenges and disruption from modern practices. ¹⁵²

4.7. The Human Right to Water

Under a 2010 United Nations General Assembly Resolution, ‘the right to safe and clean drinking water [is] a human right that is essential for the full enjoyment of life and all human rights’. ¹⁵³ In theory, the recognition of a human right to water ties into ownership of the groundwater. Though the right is necessarily multi-dimensional, it generally implies an individual right to water access that is supposed to supersede other governmental priorities. ¹⁵⁴ Moreover, given that many of the surveyed jurisdictions vest groundwater ownership in the state, it is possible that citizens seeking increased access to drinking water might argue for a usufructuary right to nearby groundwater irrespective of ownership or the standard permitting regime. In this respect, it is important to note that whether or not the human right to water can displace use restrictions derived from the ownership of groundwater has not been resolved by the present study.

Four of the jurisdictions involved in this survey have affirmed some version of a human right to water under their domestic law: Costa Rica, ¹⁵⁵ Kenya, ¹⁵⁶ South Africa, ¹⁵⁷ and California. ¹⁵⁸ Moreover, the Inter-American Court of Human Rights concluded ¹⁵⁹ that a human right to water exists in the Americas under Article 26 of the American Convention on Human Rights (ACHR). ¹⁶⁰ While not addressing the issue of groundwater or its ownership, the Court ordered Argentina to prepare an action plan to ensure that its Indigenous population had access to water. ¹⁶¹ Conceptually, this obligation applies to all freshwater resources, including groundwater, and nations in the American hemisphere that have ratified the ACHR, including Argentina, Chile, and Costa Rica, but not the US.

The human right to water, however, has proven to be challenging in terms of enforcement and has only sparingly been applied directly to groundwater. One notable exception is the Inter-American Commission on Human Rights, which admonished the government of Costa Rica to better regulate and control the use of agrochemicals in its pineapple industry in order to minimize groundwater pollution and ensure the human rights of local communities to access clean water. ¹⁶² Nevertheless, it remains unclear how the obligation under international law translates into domestic legal responsibilities, or how it pertains to the ownership of groundwater (and other freshwater) resources. As a result, there are significant variations in how nations implement the right. For example, the Californian human right to water carries no binding language. It instructs the state’s agencies merely to ‘consider’ the human right to water in establishing policies and regulations affecting water, and specifically disclaims any obligation to provide water or expend additional resources to develop water infrastructure. ¹⁶³ To date, Californian courts that have reviewed the provision have all concluded that it creates no binding obligations on the government. ¹⁶⁴ One scholar, however, suggests that a groundwater service plan that fails to protect drinking water uses might be deemed to violate the statute. ¹⁶⁵

Arguably, however, the right to water may underlie the rationale for other aspects of national groundwater regulation. In Kenya, for example, permits are not required ‘for the abstraction or use of water, without the employment of works, from any water resource for domestic purposes’. ¹⁶⁶ This could be seen as implementing the human right to water in so far as it makes it easier for individuals to withdraw groundwater to meet their basic needs. ¹⁶⁷ In Italy, water for human consumption has priority in the allocation of available supplies, ¹⁶⁸ which could be seen as implementing the human right to water to the extent that it is aimed at ensuring the satisfaction of basic human needs in relation to competing water demands. In South Africa, the right to water is implemented in part through the creation of a Reserve, a quantity of water set aside for satisfaction of basic human needs and the protection of aquatic ecosystems. ¹⁶⁹ All significant water resources must be considered for the Reserve, including groundwater. ¹⁷⁰ This, too, is intended to ensure a minimum threshold of groundwater for individual use and consumption. ¹⁷¹

In addition, the right to water in South Africa, articulated as a ‘right to have access to … sufficient’ water for human needs, is determined, in the first instance, by the Bill of Rights in the South African Constitution. ¹⁷² In the context of this right, it is important to note that the right pertains to treated, reticulated water, fit for human consumption. In a case before the Constitutional Court of South Africa relating to various general rights under the Constitution, the court interpreted the human right to water as imposing an obligation for the nation-state to ‘take reasonable legislative and other measures progressively to realize the achievement of the right of access to sufficient water, within available resources’. ¹⁷³ It explicitly declined to state a ‘minimum core’ of the right that could be judicially enforceable against the nation and subjected its analysis of a challenged water policy only to an examination of reasonableness. ¹⁷⁴ Accordingly, while groundwater forms a general part of the reserve component of water for basic human needs in South Africa, ¹⁷⁵ the entitlement falls within the context of potable, reticulated water, governed by the country’s Water Services Act and its regulations. ¹⁷⁶ In other words, the practical application of having the state provide access to water is found in physical infrastructural mechanisms.

5. Discussion

This study presents the results of a comparative analysis of domestic groundwater ownership regimes across ten jurisdictions in nine countries spanning five continents. It offers unique insight into how nations with different legal traditions, governance structures, and customary practices address ownership of groundwater resources. It also suggests that different ownership (and non-ownership) models can have distinct implications for other aspects of groundwater governance.

As a preliminary matter, ownership often helps to determine the authority that manages and regulates the resource as well as the scope of its powers. Where groundwater is owned by a national or provincial/state government, or where it is unowned in its unextracted natural state but subject to the custody or trusteeship of the government, that government is empowered to use, allocate, and conserve the resource on behalf and for the benefit of its citizenry. Such obligations allow governments to issue permits, licences, and concessions, as well as impose withdrawal limits, prioritized uses, and other regulations. Such responsibility becomes substantially constrained where groundwater is owned only after it is extracted, meaning that it is unowned in its unextracted natural state, or where it is subject to private ownership. In such cases, the government’s responsibility is often relegated to managing the use of the water, and has limited authority to address extraction and over-exploitation. Ownership by the government, however, does not always correlate with more governmental authority. For example, while California recognizes groundwater ownership by the state on behalf of its population and thereby has a right to regulate its extraction and use, its status as the ‘owner’ does not afford it the authority to use or possess the resource. ¹⁷⁷ In addition, the right to use the groundwater can be segregated from ownership of the groundwater itself. Thus, in California, ¹⁷⁸ Chile, ¹⁷⁹ and Texas, ¹⁸⁰ the right to use is treated as a bona fide property right that is separate from ownership of the resource.

In addition, ownership in its various forms can affect how and whether that ownership can be transferred. Generally, where ownership of groundwater is held by the state, ownership cannot be transferred, especially where ownership is coupled with a trustee relationship, which effectively prohibits the government from relinquishing its trustee obligations. In contrast, where groundwater can be owned privately, that ownership may be transferred either in conjunction with the transfer of the land overlying that groundwater, or as a separate groundwater estate severed from the land. Finally, where groundwater cannot be owned in its unextracted natural state, there is nothing to transfer.

The usufructuary right is often also transferable in the context of groundwater resources. Yet, ownership of the right is not always necessary to transfer the usufruct. In China, ¹⁸¹ Costa Rica, ¹⁸² and Kenya, ¹⁸³ for example, where the usufructuary right is treated as a concession or licence without associated property rights, the right is transferable, albeit subject to certain constraints. These amount to a governmental authorization in China, and transferable primarily in conjunction with the sale of the land overlying the groundwater in Costa Rica and Kenya. Interestingly, while the Netherlands treats groundwater as res nullius, ¹⁸⁴ it does issue authorizations to extract, which can be transferred along with the sale of the land to which the authorization is connected. ¹⁸⁵

Ownership models for groundwater resources appear to have limited bearing on Indigenous, customary, and traditional water management practices. Of the five jurisdictions that recognize such practices in their groundwater governance regime, none afford full ownership rights in groundwater resources to Indigenous or traditional communities. Chile and Kenya, however, do seem to recognize that these communities hold a substantial property interest in the use of groundwater for their water management practices. This recognition, however, appears distinct from Chile’s treatment of usufructuary rights as a bona fide property right, or Kenya’s opposite perspective in not recognizing property interests in the right to use groundwater. Italy, however, is somewhat unique from the other jurisdictions reviewed in this study in that it recognizes communal property rights associated with certain historical practices related to springs located on communally held land. ¹⁸⁶ While these communities are not regarded as Indigenous peoples, they nevertheless abide by historical and traditional practices that have been maintained for hundreds of years.

In a different vein, particular ownership regimes may have considerable implications for the human right to water. Ensuring that respect for human rights is the responsibility of government, and whether the government owns or has control over groundwater resources should be irrelevant to this obligation. Yet, when governments are responsible for the management, allocation, and conservation of groundwater resources (as they are in Costa Rica ¹⁸⁷ and Kenya ¹⁸⁸ ), they are endowed with the capacity and authority to implement measures that can support access to freshwater. In contrast, when groundwater resources are owned privately (such as in Texas ¹⁸⁹ ), the government’s ability to develop relevant measures is severely constrained because of the potential for interference with private property rights that rises to the level of expropriation. Although the strictness of laws on regulatory takings and expropriation may vary, they are found in numerous jurisdictions, including in Europe. ¹⁹⁰ Where ownership of the resource is prohibited or denied, the government’s ability to develop relevant measures also may be limited, though this can be countered through legislation or constitutional provisions. Thus, while South Africa rejects all ownership rights in unextracted groundwater, it has constitutional obligations that empower it to manage the resource on behalf of the citizenry. ¹⁹¹

Ultimately, this study demonstrates that groundwater resources can be owned under a variety of legal arrangements and regimes. It also indicates that the system used in each jurisdiction is typically a function of the legal tradition followed by that jurisdiction, but can also be influenced by Indigenous, traditional, and customary practices. In turn, the study also indicates that the type of ownership mechanism applied can have meaningful implications for the management and governance of groundwater resources. Thus, the extent to which the government may have authority to regulate groundwater abstraction and use, the transferability of ownership of the resource or the usufructuary right, the ability to ensure that a population has access to fresh groundwater, and other governance issues can be significantly affected by the ownership regime applied to groundwater.

6. Conclusion

Groundwater has become a critical resource around the world. It is a lifeline not only to nations in arid and semi-arid regions, but also increasingly relied upon by many countries and communities that historically believed they had adequate surface water supplies. As these nations continue to expand their reliance on subsurface water, many are straining existing governance structures that were not designed for modern conditions of well interference, aquifer contamination, and depleting supplies caused by climate change, population growth, and evolving priorities. Others are simply struggling with the same pressures to create viable regimes where none existed previously.

The purpose of this analysis was to pursue insight into and enhance knowledge about the various approaches used to govern groundwater resources around the world. As a first step towards that ambitious goal, this project started by addressing only the ownership aspect of groundwater governance regimes and presented the outcome of a survey of ten jurisdictions in nine countries on five continents. Given the limited sample size, the study cannot offer any definitive conclusions about how groundwater resources are owned globally, or which ownership models are more or less effective. Nevertheless, the diversity of jurisdictions evidences a variety of approaches that are each a function of the distinct histories, traditions, institutions, and customary practices that spawned them. What also seems evident is that these regimes continue to evolve and be tested by growing demand, changing climatic conditions, increasing environmental stress, expanding human rights concerns, and other factors that are likely to continue to drive reforms in groundwater governance globally.

As the first in a series of comparative studies into national laws and regulation of groundwater resources, this analysis sets the groundwork for subsequent assessments that can build and expand the knowledge base, not only on the topic of ownership but also on other important groundwater regulatory issues. Following a similar methodology, albeit refined by the experience of this study, a second project is already under way, designed to explore rights in, to, and to use groundwater resources. Other topics that may be considered for subsequent research projects include allocation and permitting regimes, conjunctive management, quality protection, and economic tools for compliance.

We firmly believe that the results of this comparative initiative will enhance understanding of groundwater regulation and governance around the world. More specifically, it will provide nations with examples and experiences from which they can draw to develop and enhance their specific regimes. Ultimately, it could also help countries to better align hydrologic realities with distinct geological, climatic, historical, political, economic, and cultural priorities and needs in order to establish a legal, regulatory governance that works best for their groundwater-related circumstances.