WATER RIGHTS

A group of rights designed to protect the use and enjoyment of water that travels in streams, rivers, lakes, and ponds, gathers on the surface of the earth, or collects underground.

Water rights generally emerge from a person's ownership of the land bordering the banks of a watercourse or from a person's actual use of a watercourse. Water rights are conferred and regulated by judge-made common law, state and federal legislative bodies, and other government departments. Water rights can also be created by contract, as when one person transfers his water rights to another.

In the eighteenth century, regulation of water was primarily governed by custom and practice. As the U.S. population expanded over the next two centuries, however, and the use of water for agrarian and domestic purposes increased, water became viewed as a finite and frequently scarce resource. As a result, laws were passed to establish guidelines for the fair distribution of this resource. Courts began developing common-law doctrines to accommodate landowners who asserted competing claims over a body of water. These doctrines govern three areas: riparian rights, surface water rights, and underground water rights.

An owner or possessor of land that abuts a natural stream, river, pond, or lake is called a riparian owner or proprietor. The law gives riparian owners certain rights to water that are incident to possession of the adjacent land. Depending on the jurisdiction in which a watercourse is located, riparian rights generally fall into one of three categories.

First, riparian owners may be entitled to the "natural flow" of a watercourse. Under the natural flow doctrine, riparian owners have a right to enjoy the natural condition of a watercourse, undiminished in quantity or quality by other riparian owners. Every riparian owner enjoys this right to the same extent and degree, and each such owner maintains a qualified right to use the water for domestic purposes, such as drinking and bathing.

However, this qualified right does not entitle riparian owners to transport water away from the land abutting the watercourse. Nor does it permit riparian owners to use the water for most irrigation projects or commercial enterprises. Sprinkling gardens and watering animals are normally considered permissible uses under the natural flow doctrine of riparian rights.

Second, riparian owners may be entitled to the "reasonable use" of a watercourse. States that recognize the reasonable use doctrine found the natural flow doctrine too restrictive. During the industrial revolution of the nineteenth century, some U.S. courts applied the natural flow doctrine to prohibit riparian owners from detaining or diverting a watercourse for commercial development, such as manufacturing and milling, because such development impermissibly altered the water's original condition.

In replacing the natural flow doctrine, a majority of jurisdictions in the United States now permit riparian owners to make any reasonable use of water that does not unduly interfere with the competing rights and interests of other riparian owners. Unlike the natural flow doctrine, which seeks to preserve water in its original condition, the reasonable use doctrine facilitates domestic and commercial endeavors that are carried out in a productive and reasonable manner.

When two riparian owners assert competing claims over the exercise of certain water rights, courts applying the reasonable use doctrine generally attempt to measure the economic value of the water rights to each owner. Courts also try to evaluate the prospective value to society that would result from a riparian owner's proposed use, as well as its probable costs. No single factor is decisive in a court's analysis.

Third, riparian owners may be entitled to the "prior appropriation" of a watercourse. Where the reasonable use doctrine requires courts to balance the competing interests of riparian owners, the doctrine of prior appropriation initially grants a superior legal right to the first riparian owner who makes a beneficial use of a watercourse. The prior appropriation doctrine is applied in most arid western states, including Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming and requires the riparian owner to demonstrate that she is using the water in an economically efficient manner. Consequently, the rights of a riparian owner under the prior appropriation doctrine are always subject to the rights of other riparian owners who can demonstrate a more economically efficient use.

Under any of the three doctrines, the interests of riparian owners are limited by the constitutional authority of the state and federal governments. The commerce clause of the U.S. Constitution gives Congress the power to regulate navigable waters, a power that Congress has exercised in a variety of ways, including the construction of dams. In those instances where Congress does not exercise its power under the Commerce Clause, states retain authority under their own constitutions to regulate waterways for the public good.

However, the eminent domain clause of the fifth amendment to the U.S. Constitution limits the power of state and federal governments to impinge on the riparian rights of landowners by prohibiting the enactment of any laws or regulations that amount to a "taking" of private property. Laws and regulations that completely deprive a riparian owner of legally cognizable water rights constitute an illegal governmental taking of private property for Fifth Amendment purposes. The Fifth Amendment requires the government to pay the victims of takings an amount equal to the fair market value of the water rights.

Some litigation arises not from the manner in which neighboring owners appropriate water but from the manner in which they get rid of it. The disposal of surface waters, which consist of drainage from rain, springs, and melting snow, is typically the source of such litigation. This type of water gathers on the surface of the earth but never joins a stream, lake, or other well-defined body of water.

Litigation arises when one owner drains excess surface water onto neighboring property. Individuals who own elevated property may precipitate a dispute by accelerating the force or quantity of surface water running downhill, and individuals who own property on a lower level may rankle their neighbors by backing up surface water through damming and filling. Courts are split on how to resolve such disputes.

Some courts apply the common-law rule that allows landowners to use any method of surface water removal they choose without liability for flooding that may result to nearby property. Application of this rule generally rewards assertive and clever landowners and does not discourage neighbors from engaging in petty or vindictive squabbles over surface water removal.

Other courts apply the civil-law rule, which stems from Louisiana, a civil-law jurisdiction. This rule imposes strict liability for any damage caused by a landowner who interrupts or alters the natural flow of water. The civil-law rule encourages neighbors to let nature take its course and live with the consequences that may follow from excessive accumulation of standing surface water.

Over the last quarter century many courts have begun applying the reasonable use rule to surface water disputes. This rule enables landowners to make reasonable alterations to their land for drainage purposes as long as the alteration does not unduly interfere with a neighbor's right to do the same. In applying this rule, courts balance the neighbors' competing needs, the feasibility of more appropriate methods of drainage, and the comparative severity of injuries.

Surface water that seeps underground can also create conditions ripe for litigation. Sand, sod, gravel, and even rock are permeable substances in which natural springs may form and moisture can collect. Underground reservoirs can be tapped by artificial wells that are used in conjunction by commercial, municipal, and private parties. When an underground water supply is appreciably depleted by one party, other parties with an interest in the well may sue for damages.

As with surface water and riparian rights, three theories of underground water rights have evolved. The first theory, known as the absolute ownership theory, derives from english law and affords landowners the right to withdraw as much underground water as they wish, for whatever purpose, requiring their neighbors to fend for themselves. Under the second theory, known as the American rule, landowners may withdraw as much underground water as they like as long as it is not done for a malicious purpose or in a wasteful manner. This theory is now applied in a majority of jurisdictions in the United States.

California has developed a third theory of underground water rights, known as the correlative theory. The correlative theory provides each landowner with an equal right to use underground water for a beneficial purpose. But landowners are not given the prerogative to seriously deplete a neighbor's water supply. In the event of water shortage, courts may apportion an underground supply among landowners. Many states facing acute or chronic shortages have adopted the correlative theory of under-ground water rights.

Water rights can also be affected by the natural avulsion or accretion of lands underlying or bordering a watercourse. Avulsions are marked by a sudden and violent change to the bed or course of a stream or river, causing a measurable loss or addition to land. Accretions are marked by the natural erosion of soil on one side of a watercourse and the gradual addition of soil to the other side. The extended shoreline made by sedimentary deposits is called an alluvion. Water rights are not altered by avulsions. However, any accretions of soil enure to the benefit of the landowner whose holdings have increased by the alluvion addition.

Although water covers more than two-thirds of the earth's surface, U.S. law treats water as a limited resource that is in great demand. The manner in which this demand is satisfied varies according to the jurisdiction in which a water supply is located. In some jurisdictions the most productive use is rewarded, whereas in other jurisdictions the first use is protected. Several jurisdictions are dissatisfied with both approaches and allow a water supply to be reasonably appropriated by all interested parties. Each approach has its weaknesses, and jurisdictions will continue experimenting with established legal doctrines to better accommodate the supply and demand of water rights.

further readings

Brunner, Ronald D., Christine H. Colburn, Christina M. Cromley, et al. 2002. Finding Common Ground: Governance and Natural Resources in the American West. New Haven: Yale Univ. Press.

Freyfogle, Eric. 1996. "Water Rights and the Common Wealth." Environmental Law 26 (spring).

Hall, G. Emlen. 2002. High and Dry: The Texas-New Mexico Struggle for the Pecos River. Albuquerque: Univ. of New Mexico Press.

Scott, Anthony, and Georgina Coustalin. 1995. "The Evolution of Water Rights." Natural Resources Journal 35 (fall).

Sherk, George William. 2000. Dividing the Waters: The Resolution of Interstate Water Conflicts in the United States. Boston, Mass.: Kluwer Law International.

Snoey, Janis. 2003. "Water, Property, and the Clean Water Act." Washington Law Review 78 (February).

Stoebuck, William B., and Dale A. Whitman. 2000. The Law of Property. 3d ed. St. Paul, Minn.: West.

Whitehead, Roy, Jr., and Walter Block. 2002."Environmental Takings of Private Water Rights—The Case for Water Privatization." Environmental Law Reporter 32 (October).

cross-references

Environmental Law; Land-Use Control; Law of the Sea; Pollution; Solid Wastes, Hazardous Substances, and Toxic Pollutants; Water Pollution.

Riparian rights

Riparian rights are the rights of persons who own land bordering a river, bay, or other natural surface water. A riparian right entitles the property owner to the use of both the shore and the bed as well as the water upon it. Such rights, however, may not be exercised to the detriment of others with similar rights to the same watercourse. As Sir William Blackstone observed in his Commentaries on the Laws of England (1765–69), "If a stream be unoccupied, I may erect a mill thereon, and detain the water; yet not so as to injure my neighbor's prior mill, or his meadow; for he hath by the first occupancy acquired a property in the current."

Riparian rights, or riparianism, is a legal doctrine used in the eastern United States to govern water claims. Riparian landowners have rights to the use of the water adjoining their property, but not to groundwater or artificial waterways such as canals. Riparian rights were once subject to the "natural flow doctrine," which held that the right-holder could use and divert the water adjoining his or her property at will unless this use diminished the quantity or quality of the natural flow to other right-holders. Since almost any use could be said to diminish the natural flow, this doctrine has given way to the "reasonable use" rule. David H. Getches explains the "reasonable use" rules in this way: "If there is insufficient water to satisfy the reasonable needs of all riparians, all must reduce usage of water in proportion to their rights, usually based on the amount of land they own."

In the arid western states, water rights are governed by the "prior appropriation" doctrine, under which rights are derived from the first use of water rather than ownership of riparian property. If someone bought land on a river and simply let it flow past, for instance, someone else could acquire a right to that water by putting it to use. The right remains in force, furthermore, unless the right-holder abandons the use of the water. Prior appropriation rights may also be transferred, and some cities in Arizona and elsewhere in the arid Southwest have recently taken advantage of this option by buying large ranches with established water rights in order to secure water supplies for their residents.

California has given its name to a hybrid system, followed in several states, that combines features of the riparian and prior appropriation doctrines. Whatever the system, water rights are limited by the "reserved rights doctrine," intended to assure adequate water for Native American reservations and public lands.

State and federal agencies have the legal right to regulate land use in the protection of riparian areas. Some states have established setbacks, or buffer zones, along shorelines or riverfronts that regulate development activities within the area. For example, in 1996, Massachusetts enacted the Rivers Protection Act that required property owners to follow a permitting procedure before developing any part of a corridor of 200 ft (61 m) along a riverfront or stream. New Hampshire, Wisconsin, and Montana are among the other states that have implemented state regulations of activity in riparian areas. Some of these state regulatory actions have been challenged in the federal court system as violating the Fifth Amendment constitutional right of citizens to be protected from "takings," by any government entity. Takings law prohibits the government from appropriating property for a non-public use, or from failing to provide the owner with suitable and just compensation. The placement of development, the destruction of wetlands , and the amounts of fair compensation to property owners are common points of contention in court cases that challenge the government's ability to control development in riparian areas. For example, the Federal Circuit Court determined that a mining company in Florida was due compensation when it was prohibited from removing minerals from a portion, but not all of its property located in a wetland. The Court ruled that the restriction placed on the company constituted a "partial takings," because it forced the company to bear an expense that was the public's responsibility.

Other issues that have been increasingly contested in the courts are the rights of private property owners to build docks on their waterfront property. In the 2001 case in New York, Stutchin vs. the Village of Lloyd Harbor, the plaintiffs charged that the action by the Village to deny them the right to build a longer dock than the regulations allowed constituted a takings because the action denied them the use of their riparian rights. Reparian rights include the right to wharf out to a navigable depth as long as navigation is not impeded. The Village was acting on the regulations developed along the guidelines of the New York Coastal Management Program, which assists communities in protection of coastal resources. In this case, a New York district court judge ruled that the municipality of Lloyd Harbor had the authority and the right to restrict the length of the private dock because the plaintiff's access to the water was not eliminated, and the local jurisdiction has the right to insure that public rights are protected. The judge saw that the construction of the planned dock would interfere with navigation and pose a threat to the natural resources of the area.

See also Irrigation; Water allocation; Water conservation; Water resources; Water table draw-down

[Richard K. Dagger and Marie H. Bundy ]

RESOURCES

BOOKS

Davis, C. Riparian Water Law: A Functional Analysis. Arlington, VA: National Water Commission, 1971.

Water Rights in the Fifty States and Territories. Denver, CO: American Water Works Association, 1990.

Waters and Water Rights. Charlottesville, VA: Michie, 1991.

Rights, Riparian

Water law today is primarily a product of statutes enacted by legislatures and regulations issued by implementing administrators, although reviewing courts remain important in the system. Modern law is being increasingly accommodated to ecosystem values—rather than solely to human demand—in establishing a "law of reason" for all water. This makes sense because water is part of a single hydrologic cycle. Precipitation in a humid zone contributes to streams, lakes, and wetlands , or seeps into the ground to reappear in wells and springs, ultimately to reach the ocean and again return (except for a very small amount) to precipitation.^* Along the way, water provides a necessary resource for human use, as well as ecosystems dependent on water.

The humid zones of eastern North America had little water law before the 1820s. The rule that developed is called the riparian doctrine and is part of the common law of the property tradition. The riparian doctrine in the United States exists as a legal structure for the human use of stream water in the "humid states": specifically, the states east of the first tier of states west of the Mississippi River.

The original definition of "riparian" derives from its Latin origin, ripa, meaning "bank of a stream." But in law, the term "riparian" may refer to land different than what geographically extends away from the stream. Legal definitions may be as inclusive as all the land under the continuous title of the same landowner whose ownership begins beside the stream.

Evolution of the Riparian Model

Understanding the traditional form of the riparian water law model helps in the modern legal understanding of water rights and use. The content of the riparian structure differs from the "natural flow" traditions of the common law. Common law is made by judges, and is built through published decisions, although legislatures can add statutes. Historically, courts acted within common knowledge of the physical world. Thus, the courts considered a stream to be a recurring flow of water that created a bed for the water's flow and banks to confine the flow. The dry land on both sides is riparian to that stream and geographically extends to the rim of land draining into the stream.

The courts called the traditional rule the "natural flow doctrine." Under this doctrine in its purest form, the courts asserted the riparian landowner (the owner of riverside land) was entitled to receive and return water to a stream as it came naturally to their land: that is, the landowner could use the stream without changes to its flow, volume, temperature, and quality. But as water demands increased in agriculture and industry, the courts modified the rule: some say courts adopted a new rule. In any case, the courts expanded the reasonable use idea so that maintaining the purely natural condition of the stream was no longer required.

It should be remembered that under common law, the riparian landowner's interests in the river's water was protected. Yet the common law did not provide much protection to streams as public resources. Other legal rules provided that flowing water belonged to the public and that states could not transfer certain public waters to private parties in violation of public trust . Although these rules put few limits on riparian rights concerning streams, some other legal rules restricted what a riparian landowner could do with a stream. The riparian controlled access to the stream, but could not admit an unlimited number of users nor let an unlimited amount of water be transferred elsewhere. Doing either would be considered "unreasonable" at the least.

Mill Privilege.

Although the riparian landowner had no absolute control over access, sale, and use, one very significant exception existed, thereby conferring absolute power on a few riparian landowners. This was the mill privilege. A riparian landowner could receive a right to dam a stream to turn a mill wheel and thus give a local monopoly to the owner. This privilege—exceptional in riparian states—was to mold an entirely different body of law, called the prior appropriation doctrine, which better suited the arid western states.

Today's Framework

Legal doctrines change over the course of time. In modern water law, legislatures are playing a more active role, in humid as well as arid states, because water supply cannot keep pace with human demand. Permits are increasingly required. Riparian landowners still have their powers and rights, but they are not what they were even a few decades ago. Reasonable use today in law emphasizes the full and beneficial employment of the stream for economic and other advantages that will insure the stream's living character.

see also Law, Water; Prior Appropriation; Rights, Public Water.

Earl Finbar Murphy

Bibliography

Getches, David H. Water Law in a Nutshell, 3rd ed. St. Paul, MN: West InformationPublishing Group, 1997.

Tarlock, A. Daniel. Law of Water Rights and Resources (Environmental Law Series). NewYork: Clark Boardman Callaghan, 1988 (with annual supplements 1989–2002).

^* See "Hydrologic Cycle" for an illustration of the water cycle.

RIPARIAN RIGHTS

The rights, which belong to landowners through whose property a natural watercourse runs, to the benefit of such stream for all purposes to which it can be applied.

New Jersey v. Delaware

Rivers are often the dividing lines between nations and states. This is true in the United States, where legal disputes have arisen since the founding of the Republic over how much control a state has over a river that separates it from another state. Under the Constitution the U.S. Supreme Court has general, not appellate jurisdiction over federal lawsuits between the states. This means it serves as a trial court and must be the finder of fact. However, the Court always appoints a Special Master, who acts as the finder of fact and files a report with the Court as to these findings and to conclusions of law. Once the report is filed the Supreme Court reviews the report and the “exceptions” the states make to the report. Such was the case in New Jersey v. Delaware, ___ U.S. ___, 128 S. Ct. 1410, 170 L. Ed. 2d 315 (2008), where the Court reviewed the exceptions to the report the Special Master filed as to control of the Delaware River. The Court upheld the conclusions in the report and concluded that the boundary line fell in the state of Delaware's favor.

The controversy between the states over control of the Delaware reaches back to colonial times. The current controversy arose out of the planned construction in New Jersey of a large terminal to store and transport liquefied natural gas (LNG) that would extend some 2,000 feet into the Delaware River. The project would include a gasification plant, storage tanks, and other structures onshore in New Jersey. A pier and related structures would extend the 2,000 feet in the river and berth supertankers. Construction of the project would have required dredging over 1 million cubic yards of riverbed soil, which would have affected 29 acres of riverbed within Delaware's territory. In 2004, British Petroleum, the operator of the proposed project, sought permission from Delaware's Department of Natural Resources and Environmental Control to construct the unloading terminal. The state refused, citing a state coastal zoning act that prohibits this type of offshore facility. Tempers flared on both sides of the Delaware River, with state officials threatening various actions and reprisals. In 2005 New Jersey decided to file the federal lawsuit that challenged Delaware's control of the river.

The Supreme Court, in a 5–3 decision (Justice Stephen Breyer did not participate), concluded that Delaware had title to part of the river where the terminal pier would have been located. Justice Ruth Bader Ginsburg, writing for the majority, noted that the two states had fought over control of the same portion of the river in a Supreme Court decision filed in 1934. In that case the Court had ruled that Delaware had title to “the river and the subaqueous soil” within a twelve-mile circle “up to the [low] mater mark on the easterly or New Jersey side.” Ginsburg also looked to a 1905 Compact between the two states that dealt with the twelve-mile circle of water. The agreement permitted both states, on their own sides of the river, to exercise “riparian jurisdiction of every kind and nature.” It also stated that nothing in the agreement affected the territorial limits, rights, or jurisdiction of either state concerning the Delaware river, or the soil underneath the river.

The Special Master's report contained a searching review of all prior legal disputes over the Delaware River. He concluded that Delaware had authority to regulate the proposed construction, concurrently with New Jersey, “to the extent that the project reached beyond New Jersey's border and extended into Delaware's territory. Justice Ginsburg and the majority accepted this recommendation and rejected New Jersey's exceptions to the report. The Court found that 1905 Compact did not grant New Jersey exclusive jurisdiction over all riparian improvements extending out-shore of the low-water mark. The Compact's use of the term “riparian jurisdiction” should be read as a limiting modifier and not as synonymous with “exclusive jurisdiction.” In addition, a riparian dispute between Virginia and Maryland that the Court settled in 2004 did not support New Jersey's claim. That decision was based on a Maryland-Virginia boundary settlement that gave Virginia authority to build improvements on the shores of the Potomac River and to withdraw water from it. At the time of the 1905 Compact, when Delaware agreed to New Jersey's exercise of “riparian jurisdiction,” the boundary was still disputed. The Compact did not recognize New Jersey's sovereign authority to the river. Finally, New Jersey accepted, until the present controversy, Delaware's claim to regulatory authority over “water and land within its domain to preserve the quality and prevent deterioration of the State's coastal areas.”

RIPARIAN RIGHTS

The rights, which belong to landowners through whose property a natural watercourse runs, to the benefit of such stream for all purposes to which it can be applied.

Riparian water, as distinguished from flood water, is the water that is below the highest line of normal flow of the river or stream.

cross-references

Water Rights.