Watercourses are bodies of water defined as streams, rivers, lakes, ponds, marshes, and springs. Some states define artificial bodies of water as watercourses as well. Most states do not include underground water within the definition of watercourses. Runoff water, oceans, and ocean bays are not included in the definition of watercourses in most states.
It is important to remember that a riparian owner, a person who owns land that borders on a watercourse, does not own the water. The riparian ownership doctrine provides that only a riparian owner has rights and duties related to the use of water.
The laws and regulations of the state in which a watercourse is located may have established the rights, duties, and allowable uses of the watercourses within its boundaries. Riparian rights may also apply to water that flows through or over a person’s land.
Much of modern water use law concerns itself with personal property rights associated with these bodies of water. Under the riparian doctrine, the water from watercourses belongs to those who own the land bordering the water.
Riparian rights attach to all contiguous tracts of land as long as one of them borders the water in question. Riparian owners may use the water reasonably as long as one owner’s use does not interfere with the reasonable use of other owners with riparian rights. They may use this water in connection with the riparian parcel. Consultation with a property dispute lawyer would be helpful if a person has a conflict concerning their riparian rights.
When land that is associated with riparian rights is transferred to a different land owner, the riparian rights are also transferred to the new owner unless the rights have been severed from the land. This is possible. A landowner may sever and transfer their riparian rights to a new owner without the land. A landowner does not lose their riparian rights if they do not use them.
Riparian owners have duties and rights in connection with water. They should not interfere with the uses made by other riparian owners, of course, as noted above. They should also not interfere with the public’s right to make certain uses of the water. The rights of the public depend on the law of the state in which the watercourse is located, but they may include the right to travel on the water, fish, engage in other recreational activities, and use the surface water.
There are other kinds of water rights. One of these is the “appropriative right.” This right exists independently of land that is contiguous to a watercourse.
Appropriative rights may attach to surface water that is present and exceeds the amount of water needed to satisfy riparian claims. Appropriative rights to groundwater may also be recognized. Groundwater is water that is held underground in the soil or in cracks and pores in rocks. For example, the long-term storage of water is considered to be the legally allowed exercise of an appropriative water right.
An appropriative right to use water exists regardless of the relationship between land and water. This right is based on physical control and beneficial use of the water and, if initiated after 1914, on a permit or license.
If a flowing body of water, such as a stream or a river, connects to a piece of land, the owner of that land has riparian rights in the water. The word “riparian” literally means “riverbank.” However, in some states, if the body of water does not flow, then the owner of the land connected to the water has what is referred to as “littoral rights.” This would be the case if the body of water is a pond or lake.
Landowners may also have littoral rights if they own land that borders the shore of an ocean or saltwater sea. In spite of the fact that the ocean is constantly in motion because of the tides and other currents, it is considered not to flow in the manner of the water in a stream or river.
Littoral rights relate to the landowners’ use of the shore as opposed to the water itself.
Most eastern states have adopted a riparian regulatory framework. Approximately 31 states make use of some kind of riparian doctrine, although each state has enacted its own version of it.
In many western states, people or businesses are required to apply for a permit from a state agency to make use of water. They must provide the agency with details about the use they want to make of the water. The state agency then decides if the proposed use of the water is reasonable. If it is, it grants a permit allowing the use.
The western states have traditionally followed the prior appropriation doctrine. Under this doctrine, the first person who has diverted water for their own use has a continuing right to make use of the water for the same purpose.
In the 20th century, the federal government began restricting and limiting certain water rights acquired through prior appropriation. Federal legislation that addresses water use rights includes the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act. Local land use planning law may also play a role in water rights.
These federal laws may place some restrictions on water use and have given rise to many conflicts between the federal government and the western states and their residents.
