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Someone under the water has total cover from someone on the land. If you are in the water but not under it you have partial cover from a land based opponent. What I'd like to know is if you are in the water (but not under it) and want to attack someone underneath the water, do they have cover and is it total or partial?

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Yes.

From the DMG 3.5, page 93:

Characters swimming, floating, or treading water on the surface, or wading in water at least chest deep, have improved cover (+8 bonus to AC, +4 bonus on Reflex saves) from opponents on land. Landbound opponents who have freedom of movement effects ignore this cover when making melee attacks against targets in the water. A completely submerged creature has total cover against opponents on land unless those opponents have freedom of movement effects.

(the same rule in the Pathfinder Reference Document)

My own interpretation of this rule is as follows:

If you are attacking with a weapon and you aren't subject to freedom of movement, then the surface of the water blocks line of effect. This means that two creatures who are at least chest deep in water have improved cover relative to each other. A creature who is completely submerged has total cover and therefore cannot be attacked.

PHB 3.5, page 152:

If you don’t have line of effect to your target he is considered to have total cover from you. You can’t make an attack against a target that has total cover.

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That being said, I would love to know where they got this rule from. I was surprised to find that it is the same in Pathfinder as in vanilla 3.5 –  Azeari Jan 26 '11 at 4:07
    
Why does the surface of a liquid act like a wall of force against weapon attacks? Surely this makes the harpoon a pointless weapon. IMHO, water should grant a nonmagical displacement effect: "The creature benefits from a 50% miss chance as if it had total concealment. However, unlike actual total concealment, displacement does not prevent enemies from targeting the creature normally." This is how spear fishermen catch their meal: they train themselves to adjust their aim to account for the refractivity of water, so that they spear the fish instead of stabbing themselves in the leg. –  Azeari Jan 26 '11 at 4:17
    
There is a feat called "Aquatic Spellcasting" in "Lords of Madness", which allows a land based creature to ignore the 'line of effect' rule in the case of water. I would consider that if any land based creature wants to attack someone under the water, using a spear, they would need a similar feat. I would be careful about adjusting the rules to make it more sensible to you, since there are creatures whose tactics rely upon total cover provided by water. –  jaye1234 Jan 26 '11 at 5:30
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@Azeari not correct. At least in Pathfinder, under Attacks from Land, "Magical effects are unaffected except for those that require attack rolls (which are treated like any other effects) and fire effects." d20pfsrd.com/gamemastering/environment/… One of many improvements in 3.x brought to you by Pathfinder! –  mxyzplk Jan 28 '11 at 3:22
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@Azeari - have you ever tried to throw a spear into water? If you're trying to emulate a realistic environment, you'll have the surface of the water slow down projectiles, change their trajectory, and cause underwater objects to appear displaced from their actual position. –  blueberryfields Jan 31 '11 at 2:23
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