Who Owns The Water Rights To A Property?

Who Owns The Water Rights To A Property?

The ownership of water rights to a property can be a complex and location-specific issue, as it depends on the legal framework, historical practices, and local regulations in the region where the property is located.

Two primary systems govern water rights in the United States: riparian rights and prior appropriation rights.

With riparian water rights, the rights are considered tied to the ownership of the land adjacent to the water source. So if you own riparian land, you have the right to make reasonable use of the water. The rights transfer along with the property when it is sold.

For prior appropriation water rights, the rights are not inherently tied to land ownership. Appropriation rights are established by putting water to beneficial use – like diverting water for irrigation or industrial use. The appropriation right holder may or may not own land adjacent to the water source. Appropriation rights can be bought, sold, and transferred separately from the land.

For groundwater, some states tie the rights to land ownership over the aquifer while others treat groundwater more like surface water under prior appropriation. Landowners may have limited rights to groundwater underneath their property for domestic wells and household use regardless of the overriding water rights system.

Water rights law gets more complex when property ownership changes. For example, if a farmer sold off some irrigated land but kept the original appropriation right, the new landowner may still inherit some limited right to continue using a share of water out of the original claim.

Public rights, like the public trust doctrine, can also limit private water rights tied to property ownership, to preserve public access and ecological protections.

Surface water rights tied to property ownership.

Riparian Water Rights:

Riparian rights are a set of water rights associated with property ownership adjacent to a flowing water body, such as a river or stream. In a riparian system:

1. Landownership Adjacent to Water: Riparian rights are typically attached to the ownership of property that abuts a natural, flowing water body.
2. Equal Rights for Neighboring Riparians: Landowners with riparian rights have equal rights to access and use the water, provided their usage aligns with the principles of riparian rights, including “reasonable use” and protection of the natural flow and ecosystem.
3. Automatic Rights: In many cases, riparian rights are automatically conveyed with the property, meaning that when you purchase land with riparian access, you inherit the associated water rights.
4. No Need for Permits: Riparian landowners usually do not need to obtain permits for basic, reasonable water use. Their rights are based on ownership and usage traditions.
5. Use Tied to the Water Body: Riparian rights are specific to the water body the property is adjacent to. You cannot divert water to a different location unless local regulations allow for such diversions.
6. Rights Subject to Local Laws: While riparian rights are well-established in many states, they can be subject to state-specific laws and regulations. Variations in riparian rights can exist between states and even within regions.

Prior Appropriation Water Rights:

In contrast to riparian rights, prior appropriation water rights follow a “first in time, first in right” principle. These rights are often prevalent in arid and western U.S. states. Here’s how they work:

1. No Relation to Riparian Ownership: Prior appropriation water rights are not tied to landownership. Instead, they are granted to the first individuals or entities who divert and use water for beneficial purposes.
2. Beneficial Use: Water must be used for beneficial purposes, such as irrigation, municipal water supply, or industrial processes, to qualify for appropriation.
3. Application Process: Appropriators must apply for and receive permits for water rights from the relevant state agency. The permits specify the volume of water that can be used and the purpose.
4. Senior and Junior Rights: Water rights are prioritized by the date of appropriation. Senior rights holders have precedence over junior rights holders. In times of scarcity, senior rights are satisfied first.
5. No Automatic Rights with Property: Unlike riparian rights, prior appropriation rights are not automatically conveyed with property ownership. Water rights are separate assets and may be transferred or sold independently of land.
6. State Regulation: State agencies oversee the allocation and administration of water rights in a prior appropriation system.

Determining which system applies to a property and understanding the specifics of water rights can be complex. It often requires consultation with local authorities, legal professionals, and a thorough review of property records and water rights documentation.