Last Updated on The question “what is water rights” comes up when property owners are unsure of their rights to the water resources close to the properties they own.
Water rights vary across countries and states, hence why as a property owner, you need to know the general rule and legal rights that pertain to water bodies close to your land.
This article will focus on all the water rights laws you need to know, the different types of water rights in the eastern and western united states, and of course, if you are eligible to use the water at all.
What Are Water Rights?
Water right is the legal right to use water. Having land ownership doesn’t automatically get you authorized to use water adjacent to your land, as the right to use that particular water source may belong to others.
The essence of water rights is to protect the usage of water and ensure its reasonable use, so it’s not exploited by individuals or industries that intend to use it for illegal activities.
Surface Water
Surface water is the water on the earth’s surface, i.e. lakes, wetlands, and oceans. It’s important to know that surface waters can seep underground and become groundwater.
Groundwater
Groundwater is water below the surface of the Earth, and it’s found in underground aquifers. Groundwater source include; rainfall or snowmelts that penetrate through the soil into the bedrock.
How Do Water Rights Work?
Water rights are appurtenant, in essence, they are linked to the land and not the landowners.
When it comes to water rights, there are different methods of apportioning the use of water sources by individuals and organizations;
Riparian Rights
Riparian water rights grant landowners whose land physically touches a river, free usage of the water. To be considered a riparian owner, your land needs to be “adjacent” to the water. Following the riparian law, the landowner can use the water for different domestic needs, as long as it doesn’t affect other riparian users or obstruct the natural flow of the water.
The majority of the states east of the Mississippi River use the Riparian rights doctrine based on English common law.
Littoral Rights
Littoral rights pertain to property owners whose land borders large navigable waters like oceans and seas. Landowners with littoral rights possess unrestricted access to the water, but upon the sale of the property, the new owner gains access to the water.
Prior Appropriation Water Rights
The prior appropriation doctrine states that only individuals with a permit have access to divert water from a specific water source for beneficial uses. Individuals with prior appropriative rights can decide to sell their rights unlike riparian rights.
In cases of shortage of water, the oldest permit holders with appropriative water rights are given priority access.
Filed Rights
Water rights that have been officially recorded with the local county are filed rights. This type of right was first recognized in 1885 and continued till July 1, 1973, when the Montana water use act came into effect.
Community Water Right
This water right gives individuals in the surrounding environment priority to use the water over other appropriators living far away.
Navigable Servitude
In navigable servitude, the federal government protects navigable waterways for individuals with luxury boats and even freight ships.
What is the History of Water Rights?
In 1949, the water rights law was a lot different from what it is today. Thousands of individuals came to California on a gold rush quest, as a result of the discovery of gold. The water development proceeded on an unnatural scale, as the miners built extensive networks for their claims, and such use had never been seen before in historical usage.
These miners used the “finders keepers” law, meaning the first person who appropriated the water for beneficial use has full access to it and can use it as they choose. While others still had permission to divert the water, there was a priority for those who used it first.
After California became part of the Union in 1850, Riparian rights were established. The Riparian doctrine gives water access to only landowners whose land is adjacent to the body of water. In 1851, the appropriative water rights doctrine was recognized as well, but this caused numerous legal disputes, as miners still took control of the water and used it how they wanted with no limits.
However, in 1914, the Water Commission Act started the issuance of permits for California’s surface water.
What are the Different Types of Water Rights?
The different recognized types of water rights include;
Environmental Water Rights
This type of water right is put in place to control water resources and maintain sufficient flow. Environmental water rights aim to support the functioning of the natural environment.
Water Transfer and Temporary Water Rights
Water transfers and temporary water rights are laws put in place to permit the sharing of water among different regions, and this is usually done for the public interest.
Public Trust Doctrine
The public trust doctrine is a legal principle establishing that natural resources, including the sea and its shore, are preserved for public use.
Tribal Water Rights
Tribal water right gives water access to indigenous tribes that first had access to a body of water, either for cultural or agricultural purposes.
International Water Agreements
International water agreements are formed between two countries, and it usually stipulates how to allocate and use shared water sources.
Absolute Dominion
This water right gives the owner full access to the groundwater use and should in case they need to divert water, there’s no law preventing them from doing so.
Hybrid Water Rights
This is the combination of riparian rights and appropriative rights doctrine, and it’s common in states that experience shortage of water.
What are the Differences between Eastern and Western U.S Water Rights?
Two main types of doctrine govern surface water in the United States; the Eastern and Western rights.
Some differences between both include;
- Eastern states follow the riparian doctrine, while Western states follow the prior appropriation doctrine.
- In eastern states, there’s a requirement to request for water permit before usage of the water is granted, but in western states, water users who appropriate the water source first have unlimited access to it.
- In most eastern states, there’s already a government system that regulates other peoples access to water, while in western states, the federal government is now putting certain limitations on water rights gotten through prior appropriation.
What are the Elements of Water Right?
- Purpose of Use: This indicates the authorized purpose for which the water can be used by individuals.
- Seniority: Senior rights holders are usually given priority, especially when there’s a shortage of water. In instances of water drought, they are always first in line. But this only applies in the prior appropriation jurisdiction.
- Source: The water source can either be surface water or groundwater.
- Transfer: Some water rights can be transferred; meaning the water right owner can decide to sell to another individual.
- Duration: Water rights usually have a validity period, after which it expires. This is mostly applicable to rights gotten for activities like agricultural irrigation.
- Water Diversion: Water diversion rights give water users permission in diverting water from the main source.
- Priority Date: Priority date is usually the first date when the water was put to beneficial use, and it’s mostly used by the first miner for statements of claims.
- Volume: This is the maximum amount of water that can be diverted during a period.
How are Water Rights Measured?
The different approaches for measuring water rights include;
- Water Metering: This is one of the most accurate ways to determine how much water is being used. Typically, flow meters are installed at the diversion points to keep track of the quantity of water being used by the owners.
- Water Level Measurements: Sometimes water rights are dependent on the level of the water body. In cases like this, staff gauges and electronic sensors are usually used to measure the water levels.
- Volume-Based Measurement: Water rights can be measured based on the specified amount of water allocated to an individual for beneficial use. The measurement can be in various forms; cubic meters, or acre-feet.
- Time-Based Measurement: Water rights are sometimes measured based on the time frame for which they can be used. The measurement can be expressed in days, months, or years.
What are the Other Important Water Rights Terms?
When it comes to water rights and its laws, some terms may sound confusing. So, let’s shed some light;
Accretion
Accretion is the increase in the land as a result of the permanent retreat of the water of an oceanfront property.
Erosion
Erosion happens when water or wind moves soil and other earthen materials from one spot to another.
Avulsion
An avulsion is the sudden loss of land from the actions of water. In common law, land moved away as a result of avulsion still belongs to the landowner, and the water permits are still legal.
Diversion
Diversion is the act of taking surface water from a river or stream or underground aquifer, by gravity through a definite channel into other conduits.
How Are Water Rights Enforced and Protected?
Water rights vary across states, and there are usually local laws put in place to enforce strict provisions on water usage.
States have had to employ conservation measures to clarify the rights of competitive water users. Some of the rights enforced include;
- Private Surface Water Rights
- Private Groundwater Rights
- Private Water Harvesting Rights
- Public Rights to Water
Who Owns the Water Rights To Your Property?
As long as you own the property, the water rights belong to you. If anyone sells his or her property, the new owner has exclusive use and right to the water.
How to Check If You Have Water Rights On Your Land?
The surest way to know if you have water rights is by checking the deeds of the land or asking the state officials.
Also, before closing any property deal, it’s important to know if there are permits that allow you “use” the water adjacent to your property. Because some permits may allow you to build a dam or perform constructive activities, but draw the line at using the water.
What Are The Requirements For Obtaining and Maintaining Water Rights?
The requirements for each state’s water law are different, and to obtain water rights, there are certain water regulations and requirements you need to uphold;
- Legal Framework
- Beneficial Use
- Priority and Permitting
- Water Availability Assessment and Planning
- Environmental Assessment
- Monitoring and Reporting
- Change Applications and Transfer
What Are The Potential Conflicts or Disputes Related to Water Rights?
Water rights can attract conflicts especially if the water in question existed prior as publicly owned. Some of the conflicts that arise from water rights or permits include;
- For states that practice the prior appropriation doctrine, conflicts may arise between senior and junior rights holders, mostly during a shortage of water.
- When water use by owners is perceived to have negative effects on the environment, conflicts may arise. Environmental organizations may call for legal steps to resolve the issue and place more environmental protection, as high water quality is necessary for survival.
- When there’s not enough water to allocate to all the water rights owners, conflicts may arise.
Are There Any Limitations or Restrictions on Water Rights?
Yes, there are. However, it’s dependent on the type of water right you have. For Riparian rights holders, they have unlimited access ownership and access to the water; although its use is restricted to reasonable use.
Limitations other water users may face include;
- Quantity Restriction
- Purpose of Use Restriction
- Environmental Restriction
- Water Sourcing Restriction
How Do You Determine the Value of Water Rights?
To get the real value of a water right, document its comparable sales. Knowing the value of your water right is important as they also impact the value of your land and lead to a good Return on Investment.
Conclusion
Simply because water flows through your property doesn’t mean you have the right to use it. In most cases, you’ll need to file for a permit first to gain access to usage. It’s important that you ask questions regarding the water law in your state, and follow the right process to owning rights for water resources.
FAQs
What State Owns the Most Water?
Alaska has the highest percentage of water, with a total of 94,743 square miles of water.
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