Water Rights: Definition & Types

Instructor: Shawn Grimsley

Shawn has a masters of public administration, JD, and a BA in political science.

Just become you have water on your property doesn't mean you actually ~'own~' it. In this lesson, you'll learn about water rights including different types recognized under the law. You'll have an opportunity to take a short quiz after the lesson.

Water Rights Defined

This may be quite a shocker to some people, but just because water is on land you own doesn't necessarily mean you own it or even have a right to use it. The right to use that water may belong to other people. Water rights is a broad legal term that refers to a group of different rights concerning the ownership and use of water that may be on or under the land.

Navigable Water

Generally speaking, if the body of water is navigable (whether a lake or river), the state generally owns the bed below the ordinary low water level subject to the federal government's right to regulate the water as a conduit of commerce. Under federal law, water is navigable if it can be used in its natural condition as a 'highway' for commerce. For example, if you own a house on the shore of Lake Superior, you don't own a part of Lake Superior, because it is navigable. If the water is not navigable, such as a small lake or pond, then abutting landowners may own the bed of the water based on the centerline of the bed or the relevant deeds. Of course, if it's really small and is entirely on your land, such as a small pond, you probably own all of it. You should note that state law may vary and you need to check the law in the state where you live to know your specific rights concerning the bed of a non-navigable body of water.

Riparian Water Rights

If you own property that abuts a river or stream that flows through the property, you are considered a riparian landowner because land adjoining such water is known as riparian. Importantly, you may have certain rights relating to that water known as riparian rights. It's important to note, however, that while the majority of states recognize riparian water rights, many of the more arid western states have a different system of water rights, which will be discussed momentarily.

Most states that recognize riparian water rights follow a 'reasonable use' rule regarding use of the water. Under this approach, a land owner may use water only to the extent that she can make beneficial use of it upon her land, subject, however, to the equal rights of the other landowners with riparian rights. Remember, riparian rights address water that flows through your land and does not stay on it. Thus, there are owners with riparian rights upstream from you and downstream from you and your use must not unreasonably interfere with their use of the flowing water.

Under the reasonable use approach to riparian rights, the law distinguishes between natural and artificial uses. Natural use includes such things as drinking, bathing and raising farm animals. Courts will often treat a small amount of water available for irrigation as natural as well. Large-scale irrigation or commercial use of water is an artificial use.

Courts often hold that a riparian landowner has an absolute right to use as much water, even all of it, for natural use regardless of the effect on the folks downstream. In this sense, you're better off living upstream than downstream. Artificial uses are more restricted. First, you cannot make any artificial use of the water until all riparian owners both upstream and downstream have enough water to satisfy their respective natural uses. Secondly, artificial use of water is equal to all riparian owners - there is no distinction between upstream and downstream rights.

Riparian owners also generally have the right to use the water abutting their property for boat access, for fishing, swimming and other recreational use. Of course, there may be other laws and regulations that apply, such as the need for fishing and boat licenses.

Littoral Rights

Littoral rights relate to property that abuts a lake, ocean or sea. When discussing littoral rights, we are usually concerned with the right to use of the shore. Littoral rights include such things as the right to place a dock into the water to a certain distance to reach navigable water, take and make reasonable use water for domestic and agricultural use, boat, fish and swim. These littoral rights are very similar to riparian rights. In fact, in many jurisdictions, the only practical difference between littoral rights and riparian rights is the type of body of water we are talking about.

Prior Appropriation

One of the most important features of riparian water rights is that prior use of the water is irrelevant to the riparian owner's rights to it. In other words, just because your neighbor has used most of the water downstream for fifty years doesn't mean his rights take priority over yours even though you just bought the property and never have used water flowing through it. This is not the case with the prior appropriation doctrine.

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