Water Rights

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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.

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As I describe, beneficial use is a vague concept that can shift, adding uncertainty to a water right.
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The case - set in motion after Dow Chemical asserted its rights to Brazos River water - centers on whether Texas regulators may grant exceptions to the state's longstanding 'first-in-line, first-in-time' surface water rights regime.
The current range of market prices for the most senior-priority water rights available is $15,000 to 20,000 per acre-foot of water.
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