What Are Water Rights and How Do They Work?

What Are Water Rights?

Water rights pertain to the legal rights of property owners to access and use bodies of water adjacent to lands they hold. Different types of waters rights exist based on various forms of water that border or exist on a property.

In the United States, water rights can vary in the eastern and western parts of the country. In general, the western states have historically followed the prior appropriation doctrine, which grants the right to divert water to the first person who started using the water. Most eastern states follow what is known as the riparian doctrine, which limits water use to the owner of the land adjacent to the water.

How Water Rights Work

Riparian rights are a type of water rights awarded to landowners whose property is located along flowing bodies of water, such as rivers or streams. Landowners typically have the right to use the water as long as such use does not harm upstream or downstream neighbors. In the event the water is a non-navigable waterway, the landowner generally owns the land beneath the water to the exact center of the waterway.

Littoral rights are a type of water rights that pertain to landowners whose land borders large, navigable lakes and oceans. There are tides and currents that affect these bodies of water, but they do not flow by the land in the manner of streams and rivers. Landowners with littoral rights have unrestricted access to the waters but own the land only to the median high-water mark.

Water rights are appurtenantmeaning they run with the land and not to the owner. If an oceanfront property is sold, the new owner gains the littoral rights and the seller relinquishes their rights.

Special Considerations

An owner who holds land that includes a riverbank bordering on a flowing river can make use of the water for their needs, such as drinking, providing water for animals, bathing, or watering gardens. These are all considered domestic uses and are permitted. However, riparian rights might not allow the water to be pumped or otherwise removed from the flowing river or stream.

Each state and municipality will have regulations and limits on the extent of water diversion that may be permitted. Depending on local laws, the water might not be permitted for land irrigation or for commercial needs.

Some localities may allow for certain irrigation uses of the water. It may be possible to apply for water diversion rights that would allow for the transport of water away from its source. This would permit usage of the water for commercial purposes such as for mining operations or the irrigation of lands for agricultural operations. These limits are intended to reduce the impact that water removal could have on the surrounding environment.

Eastern vs. Western U.S. Water Rights

States in the eastern part of the United States follow the riparian doctrine of water rights, which allows landowners to make reasonable use of the watercourse—such as a stream, lake, pond, or river—adjacent to their land. Reasonable use entitles the landowner to use the water as long as it does not interfere with the reasonable use of another landowner downstream. For example, a reasonable use might include using the water for irrigation, watering livestock, or drinking.

Most eastern states have implemented a government-regulated riparian system. Individuals or companies must apply for a permit from a state agency and provide details about the projected use of the water. Before granting the permit, the state will determine if the projected water use is reasonable.

In contrast, almost every state west of the 100th meridian uses the prior appropriation water rights doctrine. Prior appropriation began in the 19th century as settlers moved to the western territories. Settlers acquired water rights through a system that was called “first in time, first in right.” Any individual who first appropriates a water source and puts it to beneficial use then has the vested right to continue to use and divert the water.

By the 20th century, the federal government began enacting legislation that restricted and limited certain water rights acquired through prior appropriation. Some legislation focused on water and land rehabilitation. This legislation includes the Clean Water Act, National Environmental Policy Act, and the Endangered Species Act. According to the Department of Interior, these restrictions have caused considerable conflict between the federal government and the western states.