Water Rights

Reprinted from ABR Magazine December 2003 Volume XII, #12

Water rights, also frequently called riparian rights, are intended to define a landowner’s privileges to use a body of water that is adjacent to, or runs through his property. Unlike access rights, which only address the right to enter or leave a body of water, riparian rights focus on the use of this asset. These uses might include personal or commercial applications, such as irrigating crops, watering livestock, mining, generating power, or other manufacturing purposes.

These various uses of water are collectively termed beneficial use. If the owner of riparian rights does not put them to beneficial use, he could be vulnerable to forfeiting them. Historically speaking, however, the courts have declared very few uses of water as non-beneficial.

Both personal and commercial users often entail returning used water back to the original waterway. This almost always affects water purity. As a result, environmental legislation restricts the amount of permissible water-use pollution. Further, an owner’s riparian rights can be modified or denied if there are competing needs of other private-property holders or of the community at large.

In some parts of the United States, however, prior application rules apply. Prior appropriation gives the first user of water, whether or not that person owns the land abutting the water, the unrestrained right to use it without regard to his neighbor’s needs. Prior appropriation rules are fairly common in the arid and semiarid regions of the Southwest.

Major water projects such as dams may encounter restrictions or denial of riparian rights. If the project threatens the survival of rare species, under the Endangered Species Act. However, if a major water project is a public works project (and it clears environment or other restrictions), the rights of private owners to the water in question could be pushed aside, subject to compliance with the public entity developing the project with any duties or obligations owed to the private owner. Much like the power of eminent domain, government-sponsored water projects would supercede the water rights of private concerns.

When the U.S. government holds water rights, they are typically called reserved rights.

Unlike private riparian rights, the Federal government’s reserved rights are preserved even if the water is not put to beneficial use.

Stream beds also present unique circumstances. Ownership of a stream bed may depend on whether or not the stream is a navigable water. Some states claim title to navigable stream beds, while other states treat them like any other non-navigable body of water. In the later case, ownership extends to the middle of the stream bed, with the property owners on either side of the stream sharing equal riparian rights. If non-navigable, use of the stream can be restricted exclusively to riparian owners. In the case of navigable water, however, owners must permit public use for passage and transportation.

Navigating the waters of riparian rights can be tricky business. Please obtain legal counsel if you are dealing with or are anticipating purchasing a property with water issues.