Water Rights Regulations - dummies

By Alan R. Romero

Inherent to property rights is the right of an owner to use her land to capture water to use. If a lake or stream is on her property, she can draw water out of it. She also can drill into the earth and draw water from underground. But doing so can affect the water available to other landowners.

If a stream runs through some land and the owner diverts the water to irrigate her land, people who own land downstream may not be able to draw as much or any water from the stream. If a landowner drills a well and draws out lots of water for an industrial operation, neighboring properties may not be able to draw water from their own wells.

Water moves, whether it’s on the surface or underground. It may be present on a person’s land for a time, but then it may move on to someone else’s land. So a landowner doesn’t have a right to use all the water that touches her land. Different states have different rules concerning how much water a landowner can take from a water body or from underground.

Claiming water from watercourses

In most states, owners of land that touches a lake or stream have a property right to use that water. Such land is generally called riparian land, although land touching a lake may instead be called littoral. So the property rights that owners of such land have in the water may be called riparian rights.

In Western states, however, ownership of water isn’t necessarily connected to ownership of land that the water is drawn from. Instead, ownership of water comes from making beneficial use of the water before others do. These laws about water ownership are referred to as prior appropriation laws.

Natural flow and reasonable use: Considering rights of owners of riparian land

The traditional common law rule, originating in England, is called the natural flow rule. The natural flow rule says that all owners of riparian land have a property right in the flow of the water. No riparian owner can alter the natural flow of the water, because doing so would interfere with downstream riparian owners’ rights in the water.

Of course, any use of the water at all would interfere with the natural flow of the stream. But the natural flow rule allows riparian owners to use water as long as it doesn’t substantially or materially diminish the amount of water or impair the quality of the water.

A riparian owner can draw water for domestic purposes such as drinking, cooking, and cleaning as well as to water domestic animals. If any other use substantially or materially impairs the quantity or quality of water, however, the landowner is liable to the downstream owners. And the riparian owner can’t draw water out to be used on nonriparian land.

This rule severely limits the amount of water that can be used for agricultural or industrial purposes, which is why courts gradually modified this rule to allow more extensive uses of water. Nowadays, most states follow a different rule altogether: the reasonable use rule.

The reasonable use rule allows riparian owners to use water for any beneficial purposes on their riparian land as long as they don’t unreasonably interfere with other riparian owners’ rights. As with other reasonableness rules, courts consider all the relevant circumstances to decide whether a use is reasonable, including the following:

  • The relative value of the parties’ competing water uses: Courts consider both the importance of the uses to the individual owners as well as their social and economic importance to the community. Domestic uses are generally considered the most important uses, so domestic uses on riparian land don’t unreasonably interfere with nondomestic uses. In some states, irrigation is considered the next most important use.

  • The extent of the injury to the parties’ competing water uses if they lose: This consideration may include how efficiently the parties are using water and the costs of getting needed water from other sources.

  • *Whether the water is being used to benefit riparian land: Water may be diverted to benefit nonriparian land, but uses to benefit riparian land are generally favored and more likely to be reasonable.

Water permits: Claiming ownership by prior appropriation

The Western states have prior appropriation statutes that govern rights to water. Prior appropriation statutes differ, but the basic rule is that anyone, whether a riparian owner or not, can obtain a property right to keep using a certain volume of water by first applying that amount of water to a beneficial use. Essentially, any productive use of water is a beneficial use.

When a person appropriates water in this way, she applies to a state agency that administers the water rights system. The agency gives her a permit that entitles her to keep drawing that volume of water.

If there isn’t enough water for all the permit holders, an earlier permit usually prevails over a later permit. However, most statutes identify preferred water uses and allow the holder of a later permit for a preferred use to take her specified volume of water, but she has to compensate the earlier permit holder.

The prior appropriation system entirely takes the place of riparian ownership in the most arid Western states. But in the coastal states and the states from North Dakota to Texas, the system is combined with the reasonable use rule.

Some of those states hold that riparian use prevails in a conflict with nonriparian appropriation rights; some hold that appropriation rights prevail over riparian uses; and some hold that the earlier use prevails.