The reasonable use concept in Virginia water law

Abstract

The common law which traditionally has served as the basis of Virginia's system of water rights has developed with little apparent regard for the existence of the hydrologic cycle and the interrelationships between the water in its various phases, and separate doctrines of law exist for natural watercourses, percolating ground water, and diffused surface water. Each of these doctrines relies on some form of a reasonable use concept to measure the extent of water rights. The common reliance on this concept produces some general similarity in the three doctrines of law. However, the detailed water rights existing under these three doctrines are considerably different due to variation in the nature of the applicable reasonable use concept. In natural watercourse law, the concept serves as the direct measure of water rights and actually specifies amounts and conditions of use. In the cases of percolating and diffused water, the concept places more emphasis on the use of land which consequently affects the nature of the flow of percolating or diffused water. The result of this emphasis on the reasonableness of land use is that the rights to interfere with the flow of water are greeter under these two doctrines than in natural watercourse law. The common law reasonable use concept has been affected by the enactment of statutory law to define certain water rights. However, this statutory law has not altered the basic structure of Virginia water law, and the reasonable use concept still serves as the primary measure of water rights.