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Show DELAWARE 199 3.6 Springs Delaware has no body of case law which defines rights of use in water which is generated from springs.80 Once again, this might not be too important at the present time because, as explained above, the present permit system applies to spring water, subject only to the statutory exemptions explained in section 2.1.d of this chapter, supra. Water pollution controls also apply to springs.81 3.7 Diffused Surface Water Diffused surface water is water which usually results from rain or melting snow and which spreads over the surface of the earth in a vagrant manner, not confined within any natural channel or water- course. Legal considerations relating to diffused surface water or- dinarily involve rights of use and rights of drainage. With respect to rights of use, it appears that there are no cases in Delaware which have decided the extent to which a land owner is entitled to use diffused surface waters located upon his property. It is interesting to note that section (a) of administrative regula- tion 2.01 provides that: Waters which flow vagrantly over land surface shall not be regarded as public waters and the owner of land on which such waters fall or flow shall have the right to its use, provided that no damages result to other persons. It is unclear as to whether this regulation would or could be con- strued to have any legal effect in defining the legal rights of land- owners. But in that regard, the regulation might not be too impor- tant because it is consistent with the uniform common law rule applied in other states, which recognizes rights of use in diffused surface water by the one who owns the land where the waters are found. A more difficult legal question is whether the 1966 act really intended to exclude diffused surface waters from its coverage. Since there were no cases in Delaware clearly establishing any right in landowners to use diffused surface waters, it seems clear that the legislature could have constitutionally included those waters within the requirements of the permit system. The statute does not exempt or exclude diffused surface waters from its coverage, and the ques- tion therefore arises as to whether the administrative regulation quoted above is consistent with the legislation under which it was implemented. If it is, then diffused surface waters are excluded from the act and may be used by those who own the land upon which such waters are found; if it is not, then diffused surface waters would be subject to the permit requirements of the act and could be used only pursuant to permits-except in those situations where use of diffused surface water predated the 1966 legislation. With respect to drainage or diffused surface water, Delaware ap- pears to favor the civil law, rather than the common law, rule. Thus. 80 Some cases have Involved conflicts between land use and water use. See, e.g., Little v. American Telephone & Telegraph Oo., 40 Del. ch. 53, 27 Del. 374, 67 Atl. 169 (1907) (blast- ing interferred with subterranean flow and caused spring on adjoining land to go dry). « Sec. 7-6302 (e). |
